United  Spates  GiPGui 


NORTHERN    DISTRICT    OF    ILLINOIS. 


IN  EQUITY. 


PULLMAN'S   PALACE  CAR   CO.  > 

f.v.  / 

(    Motion  for  Injunction 

WAGNER     PALACE    CAR    CO.    AXD    THE  pendente  lit,: 

LAKE  SHORE  &  MICHIGAN  SOUTH-  ' 
ERN   RAILWAY   CO. 


Abstract  of  Points  taken  in  the  Closing  Argument 
on  the  Motion  by  B.  F.  Thurston. 


&  TOWLE, 

SOLICITOUS  FOR  COMPLAINANT. 


B.  F.  THURSTON, 

OF  COUNSEL. 


BARNARD  &  QUNTHORP,  LEGAL  PRINTERS,   41   A.  40  LASALLE  ST.,   CHICAGO. 


NORTHERN    DISTRICT    OF    ILLINOIS. 


IN  EQUITY. 


PULLMAN'S  PALACE  CAR  CO. 

•vs. 

Motion  for  Injunction 

WAGNER    PALACE    CAR    CO.   AND    THE  /          pendente 
LAKE  SHORE  &  MICHIGAN  SOUTH- 
ERN RAILWAY  CO. 


Abstract  of  Points  taken  in  the  Closing  Argument 
on  the  Motion  by  B.  F.  Thurston. 


MAY  IT  PLEASE  YOUR  HONORS: 

This  is  a  motion  for  an  injunction  pending  the  progress 
of  the  cause  to  final  hearing. 

I  am  aware  that  the  complainants  are  bound  to  place 
themselves  within  the  requirements  of  the  court  in  such 
cases.  I  recognize  that  they  must  show  a  •prima  facie 
title  to  the  invention,  the  validity  of  which  is  not  seriously 
impeached.  The  seriousness  of  the  impeachment,  how- 
ever, is  not  measured  by  the  earnestness  of  the  attack 
which  the  defendants  may  make,  but  by  the  sufficiency  of 
such  attack  to  raise  a  reasonable  doubt  as  to  the  validity 
of  the  subject-matter  of  the  patent.  I  recognize,  too,  that 


it  is  the  duty  of  the  complainants  to  satisfy  the  court  that 
there  has  been  an  infringement  committed  on  the  part  of 
the  defendants. 

The  present  case,  while  it  is  peculiar  in  the  circum- 
stances that  the  Sessions  patent  is  of  recent  date,  is  also 
more  peculiar  in  the  circumstance  that  the  infringement 
which  the  defendants  have  committed  has  been  most  open, 
determined  and  flagrant.  I  humbly  submit  that  the  con- 
duct of  the  defendants  in  appropriating  for  their  own 
benefit  every  feature  of  improvement  which  the  Pullman 
vestibuled  train  exhibits,  should  properly  induce  the 
court  to  exercise  its  power  to  prevent  a  further  continu- 
ance of  the  wrong  in  case  it  shall  be  found  that  the  Ses- 
sions patent  covers  any  legal  subject  of  invention  what- 
ever. This  proposition  leads  me  to  ask  your  Honors  to 
consider  for  a  single  moment  what  is  the  theory  of  the 
law  with  respect  to  issuing  the  preventive  writ  of  injunc- 
tion pending  the  hearing  of  a  cause.  As  I  understand 
the  theory  of  the  writ,  which  it  is  purely  within  the  dis- 
cretion of  the  chancellor  to  grant  or  refuse  according  to 
the  circumstances  of  the  particular  case,  its  object  is  to 
preserve  the  existing  state  of  titles  to  properties  as  they 
were  at  the  commencement  of  the  controversy.  It  is  in- 
dispensable that  the  party  seeking  the  writ  shall  have  a 
title  to  the  invention  which  he  asserts  by  his  patent  which 
is  not  open  to  serious  doubt  or  question.  It  is  also  indis- 
pensable that  the  invention  should  have  been  substantially 
appropriated  by  the  defendant.  The  purpose  of  the  writ 
being  essentially  to  preserve  titles  in  stalu  quo,  it  is  proper 
to  regard  the  particular  circumstances  which  surround 
each  application.  The  present  case  is  not  the  ordinary 
one  where  a  defendant  has  manufactured  an  apparatus  or 
machine  under  the  authority  of  letters  patent  of  his  ownT 


professing  to  contain  an  improvement  which  has  resulted 
from  his  own  effort  and  study,  notwithstanding  that  it 
may  trench  upon  the  prior  title  of  another;  it  is  an  in- 
stance where  there  has  been,  from  the  commencement  of 
the  exhibition  to  the  public  of  the  Pullman  vestibuled 
train,  a  determined  and  deliberate  appropriation  of  every 
substantial  feature  of  construction,  whether  patentable  or 
non-patentable,  which  such  train  exhibited.  True,  the  de- 
fendants were  not  advised,  because  the  patent  had  not 
then  issued,  what  was  the  specific  improvement  which  had 
been  added  to  the  general  vestibule  construction  by  Mr. 
Sessions,  but  the  train  which  contained  such  improvement 
was  in  regular  service,  and  the  defendants  were  quite 
competent  to  understand  and  appreciate  that  the  feature 
of  uniting  the  ends  of  two  cars  by  means  of  heavy  metal- 
lic frame-plates  backed  by  springs,  and  thus  causing  a 
vertical  spring  buffer  to  be  interposed  between  the  super- 
structures of  cars,  whereby  the  frictional  surfaces  of  such 
frame-plates  under  opposing  spring,  pressures  would 
operate  to  check  the  tendency  of  the  cars  to  oscillate  or 
sway  when  in  motion,  was  an  extraordinary  novelty  in 
train  construction. 

In  view  of  the  attending  circumstances  set  forth  in  the 
affidavit  of  Mr.  Pullman,  where  he  refers  to  the  visit  of 
Mr.  Webb  to  him  to  solicit  a  license,  the  passage  in  the 
affidavit  of  Mr.  vWebb  reads  strangely  where  he  says  that 
owing  "  to  the  earnest  desire  of  said  Wagner  Company 
"  to  avoid  all  possible  controversy  or  ill  feeling,  it  was 
"  finally  concluded  that  it  was  wiser  to  obtain  a  license  from 
"  said  Pullman's  Company  under  any  and  all  patents  that 
"  might  thereafter  be  obtained  by  it  on  vestibuled  cars, 
''provided  such  license  could  be  obtained  for  a  very  small  or 
"  nominal  consideration."  Prior  to  the  time  of  lhisinterview> 


the  Wagner  Company  had  caused  one  or  more  of  its  con- 
structors and  draughtsmen  to  travel  upon  the  Pullman 
train  for  the  purpose  of  making  drawings  and  sketches  of 
the  vestibule  construction,  and  for  the  purpose  of  ap- 
propriating the  improvement  to  the  use  of  the  company 
without  any  regard  to  whether  there  was  any  patent 
property  existing  in  it  or  not.  At  the  date  of  this  inter- 
view between  Mr.  Webb  and  Mr.  Pullman  the  defendants 
were  actually  engaged  in  adding  to  their  cars — some  of 
which  had  been  built  for  them  by  the  Pullman  Company— 
the  vestibule  addition. 

Further  comment  as  to  the  extent  to  which  the  defend- 
ants have  appropriated  every  mechanical  idea  which  is 
contained  in  the  Pullman  train  is  rendered  unnecessary, 
from  the  fact  that  we  have  placed  before  this  court  an 
exact  duplicate  in  miniature  of  both  the  Pullman  and 
the  Wagner  trains.  When  placed  side  by  side  these 
trains  cannot  be  distinguished  from  each  other.  The  de- 
fendants have  copied  not  only  the  mechanical  features  of 
construction,  but  also  those  characteristics  of  form  and 
proportion  which  have  made  the  Pullman  vestibuled  train 
a  startling  individuality. 

The  outrage  which  has  been  committed  by  the  Wag- 
ner Company  is  certainly  unparalleled  in  the  history  of 
wilful  appropriation  of  the  product  of  s-ludy  and  thought 
on  the  part  of  another.  Even  if  there  were  no  patent 
property  at  all  resident  in  the  vestibule  structure,  it  must 
be  conceded  that  the  merit  which  belongs  to  this  confess- 
edly great  improvement  in  train  construction  is  due  to  the 
Pullman  Company,  and  the  taking  possession  of  it  bodily 
by  the  defendants  comes  very  close  to  that  class  of  cases- 
which  courts  of  equity  condemn  as  invasions  of  trade 
properties.  If,  however,  there  exists  in  the  vestibul-e 


organization  a  feature  of  mechanical  construction  which 
is  properly  the  subject  of  letters  patent,  the  court,  I  sub- 
mit, under  the  extraordinary  circumstances  of  this  case, 
ought  to  regard  such  patent  property  with  most  favor- 
able consideration,  and  protect  the  complainant  to  the  ex- 
tent of  that  ability  which  a  court  of  chancery  exercising 
a  sound  discretion  to  prevent  wrong-doing  can  appro- 
priately exert. 

Upon  applications  for  a  preliminary  injunction  it  is 
always  of  advantage  for  the  parties  seeking  the  writ  to 
show  that  there  has  been  an  acquiescence  on  the  part  of 
the  public  for  a  considerable  period  of  time  in  the  validity 
of  the  claim  to  the  patent  property  which  he  asserts. 
Manifestly,  it  is  not  indispensable  that  there  should  be  a 
long  period  of  acquiescence  as  a  condition  of  the  granting 
of  the  writ.  Where  the  fact  exists  it  is  an  aid  to  the 
plaintiff's  equity,  for  the  reason  that  it  is  corroborative 
of  the  assertion  that  he  holds  a  valid  title.  The  Sessions 
patent  was  granted  on  the  I5th  of  November,  1887.  It 
was  applied  for  in  April  preceding,  or  about  the  time 
when  the  first  completely  equipped  train  was  put  into  ser- 
vice on  the  Pennsylvania  road.  If  by  acquiescence  is 
meant  appreciation  on  the  part  of  the  public  and  an  open 
recognition  of  novelty  and  merit  in  its  construction,  then 
there  has  been  a  degree  of  recognition  almost  unexam- 
pled in  the  history  of  inventions  on  the  part  of  the  general 
public.  The  law  cannot  be  so  unreasonable  as  to  require 
as  a  condition  to  the  protection  of  an  inventor  that  no  rival 
in  business  shall  have  deliberately  pirated  the  invention. 
It  is  true  that  the  plaintiff  and  the  defendant  companies 
are  the  two  parties  who  are  equipping  railroads  with 
sleeping  and  parlor  car  accommodations,  and  therefore 
the  body  of  persons  who  are  to  exhibit  acquiescence  in  a 


patented  property,  in  the  sense  of  refraining  from  tres- 
passing upon  it,  are  limited  practically  to  the  defendant 
company.  On  the  part  of  this  defendant  there  has  been 
the  highest  evidence  of  acquiescence  in  the  value  of  the 
improvement,  from  the  fact  that  it  has  appropriated  it, 
and  from  the  further  fact  (belittled  as  it  is  now  sought  to 
be)  that  it  became  alarmed  at  the  possible  consequences 
of  its  own  meditated  conduct,  and  sought  to  obtain  a 
license.  I  concede  that  at  the  time  of  this  application  for 
a  license  it  was  not  advised  precisely  what  subject  of 
claim  would  be  embraced  in  one  or  more  patents  relating 
to  the  vestibule  construction,  but  the  defendants  well 
knew  that  there  were  frame-plates  forming  part  of  such 
vestibule,  and  that  the  plates  of  adjacent  cars,  when 
coupled,  bore  against  each  other  under  frictional  contact; 
and  while  indeed  it  was  their  purpose  to  acquire  an  entire 
right  to  make  use  of  the  whole  vestibule  connection,  such 
purpose  included  a  design  to  embrace  the  Sessions  as  well 
as  every  other  patentable  feature.  It  does  not  impair  the 
legal  effect  of  their  acquiescence  in  the  complainants'  title 
to  a  patent  .property  in  the  vestibule,  that  upon  the  refusal 
of  Mr.  Pullman  to  accede  to  their  wishes,  the  necessities 
of  their  business  induced  them  to  take  possession  of  the 
whole  subject-matter  of  the  improvement  in  train  con- 
struction, and  abide  the  issue  in  the  courts.  It  was  plain 
to  be  seen  that  the  traveling  public  would  never  be  satis- 
fied in  the  future  with  anything  less  in  the  way  of  pro- 
vision for  comfort  and  safety,  and  therefore  it  is  in  every 
sense  true  that  the  wilful  piracy  by  the  defendant  empha- 
sizes the  strength  of  the  complainants'  title.  One  thing 
was  certain;  the  public  would  patronize  the  line  that  was 
equipped  with  vestibuled  cars.  It  was  not  under  the  law 
punishable  as  larceny  or  robbery  to  capture  the  improve- 


ment  for  their  own  profit  and  advantage.  There  was 
enough  uncertainty  as  to  the  outcome  of  any  remedy 
asked  from  the  courts  to  make  it  possible  that  some  acci- 
dent would  turn  in  their  favor,  and  thus  leave  them  in 
possession  for  a  considefable  period  before  a  final  hearing 
could  be  reached,  and,  therefore,  as  a  business  necessity, 
they  proceeded  to  do  that  which  satisfies  in  the  highest 
degree  the  requirement  of  a  chancellor  that  there  shall  be 
a  pregnant  suggestion  of  title  as  evidenced  by  recognition. 

The  defendants  desire  to  treat  this  question  as  at  best 
only  a  matter  of  money  damages,  but  the  court  will 
remember  that  licenses  to  use  such  inventions  as  may 
exist  in  the  Pullman  vestibule  are  not  on  sale.  It  is  a  fact 
that  not  a  dollar  is  charged  by  the  Pullman  Palace  Car 
Company  to  the  roads  which  they  equip  as  a  license  fee 
for  the  use  of  the  Sessions  invention.  The  value  of  this 
patent  property  to  the  complainant  is  largely  dependent 
upon  the  exclusiveness  of  the  enjoyment  of  the  same  by 
the  complainant  company,  and  therein  resides  the  irrepa- 
rable injury  which  the  complainant  will  sustain  in  the 
event  that  its  right  is  not  upheld.  The  Pullman  Compa- 
ny, as  well  as  the  Wagner  Company,  are  not  merely  car 
constructors;  they  are  operators  of  car  equipment  in  con- 
junction with  the  railroads  equipped  by  them,  and  the 
profit  which  they  derive  is  not  based  upon  an  exclusive 
license  fee,  but  upon  the  enjoyment  by  themselves  of  the 
property  covered  by  the  patents,  and  from  the  increased 
profits  derived  from  the  patronage  of  the  public  in  select- 
ing the  accommodations  furnished  by  one  company  in  pre- 
ference to  those  furnished  by  the  other. 

No  one  can  question  that  a  court  of  chancery  has 
ample  power  in  its  discretion  to  issue  the  preventive  writ 
of  injunction  pending  a  hearing  upon  the  merits  of  a  case 


8 
I 

in  the  event  that  good  conscience  requires  this  protection 
to  be  afforded.  Prior  to  1862,  the  rule  ^as  very  much 
stricter  in  its  application  to  the  protection  of  patent  prop- 
erties. A  court  of  chancery  would  not  entertain  a  bill  in 
equity  to  repress  an  infringement  unless  the  title  of  the 
patentee  had  been  first  vindicated  in  a  court  of  law.  By 
common  consent  the  justices  of  the  Supreme  court  re- 
cognized the  propriety  of  relaxing  this  ancient  rule,  and 
thereafter  actions  at  law  in  the  federal  courts  based  upon 
letters  patent  became  the  exception  rather  than  the  rule. 
While  indeed  it  is  true  now,  as  heretofore,  that  the  party 
seeking  the  writ  shall  show  a  clear  -prima facie  title  to  his 
invention,  and  that  the  court  shall  be  satisfied  that  the 
equity  of  the  case  clearly  preponderates  in  his  favor,  it  is 
not  necessary  that  the  court  should  reach  the  conclusion 
in  favor  of  the  plaintiff  by  any  particular  order  or  kind  of 
proof.  The  essential  inqufry,  I  submit,  is  whether  any 
reasonable  doubt  has  been  cast  upon  the  validity  of  the 
plaintiff's  patent  by  any  showing  on  the  part  of  the  de- 
fendant sufficient  to  i  mpair  the  effect  of  the  prima  facie 
evidence  of  validity  based  upon  the  fact  that  the  patent 
has  issued  from  the  government.  If  this  can  be  answered 
in  the  negative,  and  if  it  further  appears  that  the  defend- 
ant is  utterly  devoid  of  any  merit  in  himself,  but  has 
been  guilty  of  wilful  and  deliberate  piracy,  then  every  re- 
quirement for  the  exercise  of  the  court's  power  to  grant 
the  writ  has  been  fulfilled. 

This  general  doctrine  has  been  recognized  in  several 
cases  both  in  this  country  and  in  England,  as  will  be  in- 
stanced by  the  following  cases: 

Foster  v.  Crosstn,  23  Fed.  Rep.,  400; 
Hussey    Mfg.    Co.    v.     Deering,    20    Fed. 
Rep.,  795. 


In  both  these  cases  the  patent  had  been  issued  for  only 
a  few  months. 

I  have  information  from  Mr.  .Lee,  the  senior  counsel 
for  the  moving  party  in  the  case  of  Eastman  Dry  Plate 
and  Film  Company  v.  Anthony,  which  case  is  not  re- 
ported in  the  books,  that  an  application  was  made  for  an  in- 
junction and  a  restraining  order  based  upon  a  patent  which 
had  just  been  issued  from  the  Patent  Office,  under  the 
circumstances  where  the  defendants  had  obtained  from  a 
workman  who  had  left  plaintiff's  employment  sufficient 
information  to  enable  them  to  construct  a  machine  like 
the  one  patented.  The  defendant  at  the  hearing  purged 
himself  of  any  intent  to  infringe,  and  declared  that  so 
soon  as  he  was  informed  that  a  patent  had  issued  he  gave 
orders  to  stop  any  further  progress  with  the  machine. 
The  injunction  under  these  circumstances  was  denied  by 
Judge  Shipman  on  condition  that  the  defendant  would  file 
a  stipulation  not  to  infringe  upon  the  patent  pending  the 
suit.  This  case  is  especially  pertinent,  for  the  reason 
that  the  validity  of  the  patent  was  denied,  but  the  circum- 
stances under  which  the  defendant  had  commenced  the 
manufacture  of  the  machine  savored  so  much  of  bad  pur- 
pose as  to  warrant  a  binding  requirement  that  the  defen- 
dant would  not  use  the  invention  pending  the  issue  of  the 
case.  The  parallelism  between  this  unreported  case 
and  the  one  now  before  the  court  is  very  striking. 

The  doctrine  on  this  subject  is  stated  in  Kerr  on  Injunc- 
tions, p.  402,  in  these  words: 

"  But  it  is  not  a  matter  of  course  that  a  patentee 
should  establish  his  right  before  applying  to  the 
court.  If  the  question  as  to  the  validity  of  the 
patent  be  free  from  doubt  and  difficulty,  or  a  fair 
•prima  Jacie  case  be  made  out,  the  court  may  inter- 


IO 

fere,  notwithstanding  that  the  patent  may  be  a  re- 
cent one.  The  conduct  or  admissions  of  the  defend- 
ant may  amount  to  sufficient  -prima  facie  evidence 
on  which  to  grant  an  injunction  even  in  cases 
where  there  is  a  doubt  as  to  the  validity  of  the 
patent." 

Again,  Mr.  Agnew,  in  his  treatise  on  the  English  law 
relating  to  patents  for  inventions,  page  312,  says,  after 
stating  the  rule  as  it  is  observed  in  this  country: 

"  But  the  court  has  power  to  grant  an  injunction  to 
restrain  the  infringement  of  a  recent  patent  without 
requiring  the  patentee  to  establish  his  right,  if  it 
appears  that  such  course  will  do  justice  between 
the  parties." 

The  Vice  Chancellor  in  Gardner  v.  Broadbent,  2  Jur., 
N.  S.,  1041,  says: 

"There  is  no  law  of  this  court  which  prevents  a 
patentee  by  the  recency  of  his  patent  from  apply- 
ing for  an  injunction  ex  •parte,  and  I  wish  it  to  be  un- 
derstood that  the  law  of  this  court  is  laid  down  by 
Lord  Eldon  in  the  case  of  the  Universities  of  Ox- 
ford and  Cambridge  v.  Richardson" 

The  same  Vice-Chancellor  says,  in  Clarke  v.  Ferguson, 
i  Giff.,  184: 

"  It  is  not  a  mere  matter  of  course,  because  a  patent 
is  recent,  to  call  on  the  patentee  to  establish  his 
rights  at  law  before  he  can  obtain  relief  in  this 
court;  it  is  in  the  discretion  of  the  court  to  require  a 
plaintiff  to  assert  his  rights  at  law,  or  otherwise,  ac- 
cording to  the  nature  of  the  case." 

In  this  case  the  injunction  was  granted  in  view  of  the 
circumstances  of  the  case. 

Lord  Justice  Bruce,  in  Renard  v.  Levinstein,  10  Law 
Times,  N.  S.,  177,  commented  upon  the  recent  grant  of  a 


II 

patent  before  him,  and  in   denying   the   motion   on   other 
grounds  says: 

"Its  age  is  no  objection  to  an  interlocutory  injunc- 
tion of  itself." 

The  question  has  been  decided  by  Judge  Wallace  in 
the  Grape  Sugar  cases,  10  Fed.  Rep.,  836.  He  re- 
marks: 

"  Formerly  the  rule  undoubtedly  was  that  a  prelimi- 
nary injunction  would  not  be  granted  unless  the 
right  secured  by  the  patent  was  fortified  by  evi- 
dence of  the  exclusive  or  recognized  enjoyment  of 
the  right  or  by  former  adjudications  sustaining  it. 
In  more  recent  practice  this  rule  has  been  relaxed 
when  the  validity  of  the  patent  has  not  been  as- 
sailed and  the  proof  of  infringement  is  clear. 
North  v.  Craivshaw,  4  Blatch.,  70;  Biirleigh  Rock 
Drill  Co.  v.  Loddell,  i  Bann.  &  Ard.,  635;  Steam 
Gauge  &  Lantern  Co.  v.  Miller,  8  Fed.  Rep., 

3M-" 

Judge  Walker  recognized  the  same  general  principle  in 
the  caseof  Butler  v.  Ball,  28  Fed.  Rep.,  754,  when  he 
granted  an  injunction,  under  the  peculiar  circumstances  of 
the  case,  against  a  party,  prohibiting  him  from  making  a 
structure  which  was  the  subject  of  an  application  for  letters 
patent  which  had  not  issued  at  the  time  that  the  order  was 
applied  for. 

THE  SESSIONS  IMPROVEMENT. 

I  am  now  brought  to  the  inquiry  as  to  what  is  the  sub- 
ject of  invention  set  forth  in  the  Sessions  patent  of  Novem- 
ber 15,  1887.  After  we  understand  the  subject  to  which 
the  patent  specifically  relates,  it  will  be  easy  to  proceed  to 
inquire  whether  in  any  alleged  anticipatory  matter  that 
has  been  brought  before  the  court  on  the  part  of  the  de- 


12 

fendants  there    is  any  hint   or  suggestion  of  the  Sessions 
improvement. 

There  is  one  characteristic  of  the  improvement  set  forth 
in  the  Sessions  patent  which  must  be  kept  in  mind  through- 
out the  entire  discussion,  because  it  is  radical,  and  dis- 
tinguishes the  device  or  apparatus  which  he  has  patented 
from  any  prior  construction  described  in  any  letters  patent 
or  existing  in  the  art.  That  prime  character  is  the  em- 
ployment of  frame-plates  as  they  are  termed  in  the  patent, 
or  equivalent  series  of  buffers  forming  a  part  of  the  car 
structure,  or,  in  other  words,  constituting  an  extension  of 
the  car-body  to  a  point  some  inches  beyond  the  vertical 
plane  of  the  end  of  the  car.  It  is  required  that  these 
frame-plates  shall  be 

"arranged,  as  shown  in  the  drawings,  at  each  end  of 
the  car,  in  vertical  planes  which  are  parallel,  or  sub- 
stantially so,  with  vertical  transverse  planes  passing 
through  the  body  of  the  car,  and  when  the  car  is  de- 
tached from  a  train,  these  frame-plates  will  be  projected 
beyond  the  ends  of  the  car  by  the  influence  of 
backing  springs  such  as  are  indicated  at  Fig.  j." 

And  again— 

"  The  end  to  be  accomplished  is  to  cause  the 
frame-plates  to  act  as  spring  buffers  whenever  cars 
are  being  coupled,  or  whenever  a  train  is  suddenly 
checked  or  started,  and  to  also  act  as  frictional  re- 
sistance plates  to  oppose  or  counteract  the  influences 
which  tend  to  induce  a  swaying  or  oscillating  move- 
ment in  the  several  cars  of  a  train."  (Page  2,  lines 

5-22.) 

In  the  introduction  to  the  specification  the  purpose  of 
the  invention  is  stated  to  be  twofold;  first,  to  diminish  the 
racking  effect  upon  the  car-body  when  the  apparatus  acts 
as  a  spring  buffer,  and  "  consequently  to  diminish  the 


13 

"  tendency  to  a  swaying  or  oscillating  movement,  which 
"  is  developed  whenever  a  train  is  running  at  high  speed 
•'upon  an  ordinary  railroad  track."  (P.  i,  lines  25-35.) 

In  the  description  of  the  apparatus  the  connection  of 
the  frame-plates  with  the  car-body  by  means  of  strong 
"  rods  or  bars  c  c'"  attached  at  one  end  to  the  frame-plate 
at  its  upper  corqers,  and  capable  of  sliding  between  keep- 
ers bolted  to  said  vestibule  extension  or  to  the  car-body  is 
pointed  out  by  reference  to  the  drawings,  particularly  to 
Fig.  4,  where  the  matter  is  plainly  shown.  The  lower  ends 
of  the  frame-plates  are  shown  and  described  as  connected 
with  the  main  buffer  springs  arranged  underneath  the  car 
platform.  It  is  manifest  from  this  description  that  the 
frame-plates  and  the  connecting  attachments  of  the  same 
with  the  car-body  constitute  an  extension  of  the  frame  of 
the  car-body  itself,  and  that  such  extension  has  no 
capacity  to  move  sidewise  independently  of  the  movement 
of  the  body  of  the  car  with  which  the  same  is  connected, 
for  the  reason  that  the  frame-plates  are  held  in  vertical 
planes  substantially  parallel  with  the  vertical  transverse 
planes  passing  through  the  body  of  the  car  by  means  of 
such  connecting  sliding  bars  c  c',  and  the  attachment  at  the 
foot  to  the  main  platform  buffers. 

This  characteristic,  as  I  have  said,  should  be  kept  in 
mind,  because  it  is  in  contrast  with  various  prior  struct- 
ures which  are  designed  to  enclose  the  ends  of  cars,  and 
which  are  articulated  so  as  to  be  capable  of  sidewise 
movement  independent  of  the  sidewise  movements  of  the 
car-body.  One  of  such  instances  will  be  found  in  the 
prior  patent  to  Charles  S.  Smith  of  October  24,  1882,  to 
which  I  shall  have  occasion  hereafter  to  allude. 

It  is   clear  from  the  patent  that  these  frame  extensions 


of  the  car-bodies  are  forced  outward  by  the  influence  of 
their  top  and  bottom  backing  springs  to  a  point  several 
inches  beyond  the  vertical  planes  which  these  same  frame- 
plates  will  occupy  when  the  cars  are  coupled  together. 
It  follows  of  necessity  that  the  faces  of  these  plates,  in 
contact  when  the  cars  are  coupled  into  a  train,  will  press 
against  each  other  with  all  the  force  due  to  the  pressure 
of  their  backing  springs,  and  thus  the  necessary  effect  of 
the  construction  will  be. 

"  to  provide  a  resistance  to  this  tendency  to  oscil- 
lation, by  checking  the  same  at  the  outset  before  the 
impulses  which  produce  it  have  accumulated.  The  sur- 
faces of  the  spring-backed  frame-plates  in  contact  are 
capable  of  resisting  all  ordinary  impulses  to  oscillation 
induced  by  the  movement  of  the  train." 

In  the  same  paragraph  it  is  further  stated: 

"  The  effect  of  combining  the  cars  of  a  train  by 
the  aid  of  frictional  surfaces  in  contact  under  consid- 
able  pressure,  such  as  I  have  shown,  is  to  dissipate 
all  the  lateral  movements  of  each  car  throughout  all 
the  other  cars  so  connected,  and  thus  give  steadiness 
to  the  whole  train.  This  result  will  not  only  greatly 
facilitate  the" ease  in  passing  from  one  car  to  another, 
but  will  enable  trains  of  the  same  weight  and  motive 
power  to  be  run  safely  and  comfortably  at  higher 
speeds  over  the  same  road-bed  than  heretofore." 

(P.  2,  line  125,  to  p.  3,  line  7.) 

I  agree  with  the  learned  counsel  for  the  defendants  that 
the  Sessions  patent  does  not  profess  to  embrace  a  vesti- 
bule enclosure  for  the  ends  of  cars.  It  is  an  apparatus 
which  is  of  the  greatest  value  and  utility  when  the  plat- 
forms of  cars  are  enclosed  by  a  vestibule,  because  it  en- 
ables a  close  joint  to  be  made  between  the  abutting  ends 
of  cars,  which  will  exclude,  to  a  great  degree,  dust  and 
-snow.  But  the  improvement  is  capable  of  being  applied, 


as  the  patent  states,  to  railway  cars  of  the  ordinary  type, 
not  provided  with  enclosed  platforms.  It  is  an  apparatus 
which  is  capable  of  accomplishing  all  the  advantages 
which  can  be  claimed  for  any  previously  existing  spring 
buffer.  It  is  distinguishable,  as  I  will  presently  show, 
from  any  prior  arrangement  of  a  buffer  between  the 
superstructures  of  cars,  in  the  important  circumstance 
that  the  adjacent  faces  of  the  plates  are  constantly  under 
opposing  spring  pressures.  The  value  of  this  construc- 
tion, furnishing  as  it  does  a  spring  cushion  interposed 
between  car  superstructures,  is  greater  than  that  of  any 
prior  device  to  resist  the  effect  of  collisions  upon  -railroads, 
by  maintaining  the  integrity  of  the  car-bodies.  A  chief 
value,  however,  of  the  improvement,  and  the  one  to  which 
special  emphasis  is  given  in  the  patent,  resides  in  the 
ability  of  the  device  to  check  those  slight  tendencies  to  a 
tremulous  or  vibratory  movement  which  are  so  disagree- 
able to  the  passenger  when  a  train  is  running  at  high  speeds. 
This  subject  is  set  forth  fully  in  the  affidavit  of  Mr.  Pull- 
man in  the  illustration  which  he  draws  from  the  operation 
of  a  child's  swing,  which  is  capable  of  falling  through 
large  arcs  of  vibration  as  the  result  of  a  succession  of 
aggregated  impulses,  each  one  of  which  is  trifling  in  its 
force.  Again,  it  is  well  known,  as  the  patent  states,  that 
"  the  cars  of  a  train  do  not  generally  sway  in  unison,  but 
"  oscillate  according  to  the  effect  of  particular  accidents  or 
"influences",  and  the  effect  of  these  friction  plates,  which 
are  incapable  of  sidewise  movement  independently  of  the 
car-bodies  to  which  they  are  attached,  is  to  dissipate  these 
lateral  movements  throughout  the  connected  cars,  and 
thus  give  steadiness  to  the  train. 

The  criticism  that  the  patent  does  not   point  out  how 
strong  the  backing  springs  should   be   is  sufficiently  an- 


i6 

swered  by  the  statement  in  the  patent  that  the  frame- 
plates  are  brought  face  to  face  in  close  frictional  contact, 
and  backed  by  powerful  springs,  and  that  the  effect  of 
the  improvement,  as  required  by  the  description  and  the 
claim,  should  be  such  as  to  furnish  a  frictional  resistance 
in  opposition  to  the  forces  which  tend  to  set  up  vibrations 
or  oscillations  in  the  car-bodies. 

The  testimony  which  has  been  presented  in  support  of 
the  motion  can  leave  no  reasonable  doubt  upon  the  mind 
of  the  court  as  to  the  effect  of  the  frame-plates  in  practical 
use  being  all  that  the  patent  claims.  After  making  every 
allowance  for  the  thorough  construction  of  cars  in  other 
respects,  including  the  strength  of  the  framing  and  the 
proper  adjustment  of  the  different  parts  to  each  other  in 
the  direction  of  balancing  the  effect  of  forces  to  which  a 
train  is  exposed  in  running,  there  remains  a  great  deal  in 
the  way  of  a  tendency  to  vibrate,  which  is  only  corrected 
by  the  presence  of  vertical  buffer  plates  in  frictional  con- 
tact. We  have  presented  a  large  number  of  testimonials^ 
under  oath,  from  persons  in  the  community  whose  intel- 
ligence, respectability  and  freedom  from  influence  will  be 
recognized  by  this  court.  It  is  impossible  that  these  gen- 
tlemen, who  have  volunteered  their  testimony  to  the 
superior  comfort  of  the  vestibule  train  over  the  best  form 
of  train  previously  known,  can  be  under  a  delusion. 
They  have  been  selected  for  the  reason  that  there  could 
be  no  suspicion  that  their  testimony  was  induced  by  any 
desire  to  render  a  favor  to  the  complainants.  It  must  be 
a  fact  when  they  testify  that  the  movements  of  a  train 
provided  with  the  Sessions  improvement  are  more  steady 
comfortable  and  uniform.  The  vestibule  enclosure  makes 
a  passage  from  one  car  to  the  next  more  comfortable  and 
easy,  but  it  has  no  effect  in  giving  steadiness  of  movement 


to  a  train  in  case  the  ends  of  the  adjacent  cars  are  not  com- 
bined together  by  the  Sessions  device.  When  we  are 
told  that  the  lamps  of  a  car  are  capable  of  being  burned 
with  a  higher  flame  than  heretofore,  it  must  be  a  fact 
that  the  vibrations  of  the  car-body  have  been  reduced- 
When  it  is  testified  that  the  upper  berth  of  a  car  in  a 
Pullman  vestibuled  train  is  rendered  more  comfortable, 
and  that  the  occupant  can  sleep  more  quietly,  because 
there  is  less  lateral  movement,  it  is  at.  least  probable, 
when  we  find  mechanism  designed  to  accomplish  that  end, 
and  manifestly  embodying  the  forces  capable  of  bringing 
about  that  end. 

The  testimony  of  conductors  upon  the  train  should  not 
be  disregarded  because  they  are  the  servants  of  the  com- 
pany, when  they  tell  us  that  persons  afflicted  usually  with 
travelling  nausea  are  not  so  affected  when  traveling  upon 
a  Pullman  vestibuled  train.  This  fact  is  testified  to  by 
persons  whose  nervous  organizations  subject  them  to  that 
malady,  and  therefore  the  testimony  of  conductors  in  that 
respect  is  independently  confirmed." 

Again,  it  cannot  be  the  mere  effect  of  imagination  when 
the  traveler  in  visiting  the  dining  car,  finds  that  his  soup 
is  not  thrown  into  his  lap  or  his  wine  bottle  overturned. 
Our  testimony  shows  that  passenger  cars  quite  as  heavy 
and  as  well  appointed  in  every  respect  as  those 
of  the  vestibuled  train  were  in  common  use  be- 
fore the  vestibuled  train  came  out,  and  yet  it  is 
true  that  the  passengers  over  the  line  of  the  Pennsyl- 
vania railroad  traveling  in  such  equipment  experience  dis- 
comforts that  they  do  not  feel  when  travelling  upon  the 
vestibuled  train;  and  thus  I  feel  that  I  am  justified  in  say- 
ing that  the  whole  body  of  proof  which  the  complainants 
have  presented,  from  the  conductors  in  their  employ, 


i8 

from  the  general  and  divisional  superintendents  of  rail- 
roads, and  from  passengers  of  intelligence  and  respecta- 
bility, who  are  able  to  compare  the  former  order  of  things 
with  the  new,  establishes  in  a  conspicuously  certain  way 
the  practical  value  and  importance  of  the  Sessions  appli- 
ance. 

DIFFERENCE  BETWEEN  THE  CONSTRUCTION  OF  ENGLISH 
AND  AMERICAN  RAILWAY  CARS. 

In  this  connection  it  is  pertinent  that  I  should  direct  the 
attention  of  the  court  to  the  difference  betvven  English 
railway  carriages  and  their  combination  with  their  run- 
ning gear,  and  American  railway  coaches  in  universal 
use.  The  matter  has  a  bearing  not  only  upon  the 
importance  of  the  Sessions  improvement,  but  it  will  also 
help  us  to  understand  presently  the  prior  English  devices 
for  ameliorating  the  effects  of  a  collision  which  are  set 
forth  in  several  patents  of  prior. date; 

The  ordinary  car  in  use  in  England  prior  to  the  intro- 
duction of  Pullman  cars  into  Great  Britain  consisted  of  a 
strong  platform,  about  eighteen  or  twenty  feet  in  length, 
upon  the  under  side.  At  each  end  are  down-hangers,  which 
are  furnished  with  vertical  slots,  within  which  axle-boxes 
are  mounted,  and  through  which  boxes  the  carriage  axles 
pass.  With  the  exception  of  a  capacity  for  vertical 
movement  in  such  down-hangers,  the  car-axles  are 
rigidly  connected  with  the  platforms.  It  is  intended  that 
such  car  platforms  shall  be  so  short  as  that  the  distance 
between  the  centers  of  the  axles  at  each  end  of  the  car 
shall  fall  within  a  unit  of  the  curve  of  the  railroad  track. 
The  superstructures  of  English  cars  have  about  the 
strength  of  Concord  stage-coach  bodies.  The  whole 


reliance  is  upon  the  strength  of  the  platforms  which  sup- 
port such  bodies.  Again,  the  height  of  such  super- 
structures is  only  about  seven  feet  two  inches.  All  this 
clearly  is  made  to  appear  in  the  replying  affidavits  of  the 
complainant.  Now,  the  American  system  of  construct- 
ing railroad  cars  involves  the  employment  of  a  car-body 
from  forty  to  seventy  feet  in  length.  It  would  be  impos- 
sible for  a  car-body  of  this  length,  if  provided  with  rigid 
axles  at  its  ends,  to  follow  the  curves  of  any  ordinary 
roadbed.  Consequently  the  car-bodies  are  mounted  upon 
trucks,  which  are  capable  of  swiveling,  so  as  to  conform 
to  the  curvature  of  the  roadbed  independently  of  the  car- 
bodies.  Each  of  these  trucks,  as  is  well  known,  carries 
from  four  to  eight  wheels.  Ordinarily  in  the  cars  of  the 
complainants  and  defendants  each  truck  is  provided  with 
six  wheels,  and  the  distance  between  the  centers  of  the 
extreme  axles  of  the  wheels  of  the  truck  is  entirely 

•/ 

within  the  unit  of  the  interior  of  the  curve  which  would 
be  employed  in  railroad  construction.  It  needs  no  argu- 
ment to  establish  the  fact  that  a  car-body  mounted  upon 
trucks,  capable  of  swiveling  under  the  car,  has  a  very 
much  less  rigid  base  support  than  would  be  the  fact  in 
case  the  car  were  only  eighteen  feet  in  length  and  had  its 
running  gear  practically  rigidly  connected  with  the  cat- 
platform.  Again,  the  height  of  the  American  car  is  three 
feet  in  excess  of  that  of  an  English  car.  This  is  for  the 
purpose  of  accommodating  a  tier  of  upper  berths,  or,  in 
day  cars,  fort  airiness  and  ventilation.  It  is  within  the 
experience  of  every  traveller  on  railways  in  this  country 
that  a  fast-running  train  over  an  ordinary  roadbed  has  a 
tendency  to  set  up  vibration.  One  has  only  to  observe 
the  swaying  of  the  signal  cord  which  runs  through  a 
train  to  appreciate  this  fact.  This  oscillatory  movement 


20 

under  ordinary  conditions  may  not  be  very  great,  but  it 
is  always  disagreeable.  It  interferes  with  the  reading  of 
ordinary  print;  it  produces  a  general  nervous  discomfort; 
to  many  people  of  sensitive  organization  it  is  a  cause  of 
serious  inconvenience.  Any  device  which  will  tend  to 
lessen  this  cause  of  discomfort  is  surely  a  blessing,  but 
when  we  consider  that  the  same  device  which  effects  this 
is  capable  also  of  preventing  in  a  great  degree  the  mainte- 
nance of  those  larger  vibrations  of  car-bodies  which  are 
induced  by  the  curves  of  a  railway  track,  as  well  as  by 
the  unevenness  of  the  rails,  we  can  understand  that  there 
has  been  added  a  safety  appliance  of  the  highest  value. 

The  swaying  movement  of  cars  does  not  spring  into 
existence  at  once;  it  is  the  result  of  a  succession  of  im- 
pulses which  are  constantly  applied.  Each  impulse  is 
added  to  the  preceding  ones  until  finally  the  train  lakes 
a  curve  in  an  opposite  direction,  and  then  the  swaying 
movement  is  suddenly  arrested  with  a  shock,  and  a  new 
set  of  oscillations  are  again  engendered  to  be  again  arrest- 
ed with  a  shock  when  the  train  takes  a  curve  in  the 
reverse  direction.  No  one  contends  that  such  extreme 
conditions  may  not  exist  as  to  compel  car-bodies  to  sway, 
notwithstanding  the  interposed  friction  'resistance  plates. 
Undoubtedly  the  weight  of  a  car-body  is  very  great,  and 
its  momentum  after  the  swaying  motion  has  been  set  up 
is  almost  irresistible.  It  is  the  purpose  of  the  Sessions 
improvement  to  diminish  these  ill  effects  attending  rail- 
way travel  by  a  device  which  checks  at  the  outset  the 
tendency  to  vibration.  It  is  no  answer  to  the  value  of 
this  device  to  say  that  there  are  some  conditions  where 
the  forces  creating  oscillation  are  superior  to  the  forces 
arrayed  to  check  it;  the  sole  question  is,  does  the  appli- 
ance of  Sessions  have  a  tendency  to  check  car  oscillations, 


21 

and  is  it  operative  for  that  purpose?  If  the  question  is 
answered  affirmatively,  the  utility  of  the  contrivance  is 
settled  so  far  as  the  law  requires  to  be  satisfied. 

In  this  connection  I  am  brought  to  a  consideration 
which  has  been  advanced  by  Mr.  Payson,  and  to  which, 
in  my  view,  he  attaches  altogether  too  much  importance. 
In  the  view  of  the  defendants,  if  I  rightly  understand 
them,  the  presence  of  frame  plates  having  their  faces 
bearing  against  each  other  under  the  influence  of  oppos- 
ing springs,  cannot  sensibly  diminish  the  tendency  of  cars 
to  oscillate.  I  will  not  here  refer  to  the  positive  testi- 
mony of  the  witnesses  who  have  testified  for  the  com- 
plainants on  this  subject;  I  have  already  done  that;  but  I 
now  refer  to  the  mechanical  agencies  which  are  brought 
into  play  to  prevent  or  diminish  oscillation.  In  the  first 
place,  the  feet  of  the  frame  in  the  preferred  construction 
shown  in  the  Sessions  patent  are  combined  directly  with 
the  powerful  platform  springs.  These  springs  would 
ordinarily  exert  a  pressure  of  from  twenty  to 
thirty  thousand  pounds.  Now,  the  effect  of  this 
pressure  is  felt  throughout  the  whole  altitude  of  the 
frame-plates.  Suppose,  for  example,  the  feet  of  the 
frame  plates  were  welded  fast  to  the  bars  which 
are  combined  with  the  platform  buffer  springs,  and 
that  the  pressure  of  such  springs  at  the  feet  were  twenty 
thousand  pounds.  It  would  follow,  of  course,  that  a  pres- 
sure of  twenty  thousand  pounds  applied  to  the  top  of  the 
frame-plates  must  be  exerted  in  order  to  press  backward 
the  frame-plate,  assuming,  of  course,  that  the  welded 
joint  maintained  its  integrity.  On  the  other  hand,  if  the 
frame-plates  so  combined  with  the  platform  springs  were 
hinged  to  their  rods,  so  that  the  frame-plate  could  be 
moved  backward  or  forward  upon  such  jointed  connection, 


22 

then  pressure  applied  to  the  top  of  the  frame-plate  would 
not  influence  the   spring  exerting  its  force  against  the  feet 
of  the  frame,  but  such  pressure   would  cause  the  plate  to 
be  bent  backward  away  from    the  vertical  line.     Now,  in 
fact,  these   frame-plates  are,  as    we   have    already  seen, 
combined  with  the  car-body  at  their  tops,  so  as  to  form  an 
extensible  end  of  the  car  framing,  by  means   of    rods    c  c' 
arranged   to    slide    in    keeper    guides.     Now,  it    follows, 
under  this  arrangement,  that    the   force  of  the   platform 
springs  must    be    felt    to   some  extent  clear  to  the   tops 
of   the    frames.       In   addition,   however,    there    are     the 
special  top  springs  which  are  capable   of  exerting  a   pres- 
sure of  many  hundred  pounds,  which    rapidly  increases  in 
proportion  as  the  backing  springs  are  under  compression. 
The  defendants   have  omitted,  in   their    discussion    upon 
this  subject,  to  consider  the  favorable  point    at   which  the 
pressure  is   applied  by  the  Sessions  top  springs.     When 
we  keep  in  mind  the  fact  that  the  car-body  is  mounted  on 
trucks,  we  can  readily  imagine  that  if   there  were  a  lever 
of  sufficient  length   extending  upward  in  a  vertical  direc- 
tion, say  to  the  height  of  forty  feet,  it  would  be  within  the 
capacity  of  the  unaided  power  of  a  single  strong  man  grasp- 
ing the  upper  end  of  the  lever  to  resist  almost  any  force  that 
would  tend  to  induce  an  oscillatio'n  in  the  car-body.  Of  the 
same  kind  in    character  is  the    force   which   the    springs 
exert  upon  the  vertical  frame-plates.      We  already  under- 
stand that  each  frame-plate  constitutes    a   part  of  the  car- 
body  extended,  and   partakes    of  all  the    movements  side- 
wise  of  such  car-body.     We  also  know  from  our  common 
experience  that  the  cars  of  a  train  do  not  as  a  rule  oscillate 
in  unison,  but  quite   ordinarily  through  opposite   arcs,  de- 
pending always  upon  the  accidents  of  the  situation.     Now? 
let  us  suppose  that  a  car  provided  with  a  Sessions  frame" 


23 

plate  exhibits  a  disposition  to  oscillate  toward  the  right, 
and  at  the  same  time,  for  other  reasons,  the  adjacent  car, 
also  provided  with  a  frame-plate,  has  a  tendency  to  vibrate 
toward  the  left.  So  long  as  the  frame-plates  are  in  con- 
tact as  to  their  faces  under  opposing  spring  pressures,  is 
it  not  certain,  as  a  mechanical  proposition,  that  the  op- 
posite tendencies  of  the  two  cars  will  be  wholly  or  par- 
tially neutralized  by  the  effect  of  such  spring-backed  sur- 
faces rubbing  against  each  other?  It  is  easy  to  under- 
stand that  even  a  comparatively  light  pressure  upon  the 
tops  of  the  frame-plates,  entirely  within  that  degree  of 
pressure  which  the  proof  in  this  case  shows  is  practically 
employed  in  both  the  complainants'  and  the  defendants'  cars, 
would  have  the  effect  at  least  to  destroy  or  to  check  that 
tremulous  vibratory  movement  which  does  not  require  a 
large  arc  of  movement  or  any  very  great  force  to  en- 
gender. 

In  support  of  the  defendants'  line  of  reasoning  in  the 
direction  of  endeavoring  to  establish  that  the  whole  pre- 
vention of  oscillation  is  due  to  the  main  platform  springs, 
and  not  to  any  spring  pressure  applied  to  the  frame- 
plates,  resort  is  had  to  the  theory  that  friction  does  not 
depend  on  the  area  of  the  surfaces  in  contact,  but  wholly 
on  the  character  of  the  surfaces  and  the  force  with  which 
they  are  pressed  together.  Now,  this  law,  while  in  a 
sense  correct,  is  nevertheless  in  its  practical  application  a 
deception.  Some  twenty  years  ago  a  series  of  experi- 
ments were  made,  with  a  view  of  determining  whether 
friction  depended  upon  area  or  upon  the  character  of  the 
surface  and  the  force  by  which  the  surfaces  in  contact 
were  pressed  together.  Accordingly  a  base  metal  sur- 
face was  prepared  and  made  as  smooth  as  mechanical 
tools  could  make  it.  All  roughness  of  the  surface  was 


24 

removed  by  polishing  such  surface  to  the  last  degree  of 
practical  possibility.  Then  two  other  metallic  bodies  of 
the  same  weight,  but  having  different  areas  of  surface, 
were  smoothed  and  polished  to  the  same  perfection,  and 
from  the  result  of  the  experiments  the  law  stated  was  de- 
duced; or,  in  other  words,  when  the  base  plate  was  tilted 
at  an  angle  the  two  metallic  bodies  in  contact  therewith, 
with  their  surfaces  smoothed  and  polished,  but  of  differ- 
ent areas  of  surface,  would  rest  stationary  at  the  same 
angle  of  repose.  By  this  experiment  it  will  be  observed 
that  the  great  factor  in  producing  friction  was  absolutely 
removed,  and  all  that  was  left  was  weight  and  area  of 
surface.  It  is  within  the  knowledge  of  every  one  that 
the  friction  between  two  surfaces  in  a  given  case  of  equal 
pressures  is  affected  wholly  by  the  character  of  the  sur- 
faces. The  protuberances  upon  the  surface  of  one  of  the 
bodies  in  contact  may  be  supposed  to  fit  into  the  depres- 
sions in  the  fellow  body  with  which  it  is  in  contact.  Just 
in  proportion  as  these  prominences  and  depressions  are 
numerous,  so  is  increased  the  obstacles  in  the  way  of 
moving  the  one  surface  over  the  other.  Theoretically, 
the  point  of  a  pin,  when  pressed  against  a  surface  with  a 
pressure  of  a  thousand  pounds  in  the  line  of  its  axis, 
would  induce  just  as  much  friction  as  if  there'were  a 
block  of  a  million  pins  aggregated  together  and  bearing 
by  the  same  pressure  upon  a  similar  surface.  Theoreti- 
cally, a  man  in  crossing  an  icy  slope  with  a  single  hob- 
nail projecting  from  the  sole  of  his  shoe  would  be  as 
safely  sustained  on  his  feet  as  if  the  whole  sole  of  his  foot 
bristled  with  hob-nails.  Practically,  we  know  that  the 
contrary  is  the  fact,  and  yet  the  scientific  law  as  formu- 
lated is  correct,  although  when  applied  as  illustrated  it 
becomes  an  absurdity.  It  is  true,  indeed,  that  if  the  op- 


25 

posing  pressures  on  two  Sessions  frame-plates  equals  the 
algebraic  sign  of  ,v,  the  same  pressure,  if  applied  to  the 
points  of  two  needles  in  contact,  would  cause  their  points 
to  bear  against  each  other  with  the  same  force.  When, 
however,  we  have  to  do  with  roughened  surfaces,  or  sur- 
faces which  have  a^multitude  of  small  prominences  enter- 
ing into  depressions  in  the  fellow-bearing  surface,  the 
whole  conditions  are  changed,  so  far  as  ability  is  con- 
cerned, of  one  surface  to  move  over  its  fellow-sur- 
face. A  new  factor  comes  into  play,  which  is  the 
capacity  of  the  surfaces  in  contact  to  resist  strains  in 
the  direction  of  moving  one  surface  over  the  other 
surface.  To  illustrate  the  subject,  suppose  that  a  pointed 
rod  half  an  inch  in  diameter  bore  against  the  Ses- 
sions frame-plate  and  entered  a  depression  therein, 
and  suppose  that  the  pressure  upon  the  rod  is  exactly 
what  the  pressure  may  be  supposed  to  be  upon  the 
fellow  frame-plate  whose  place  it  takes.  Now,  the  pres- 
sure in  a  direct  line  is  the  same  when  transmitted  through 
the  rod  as  when  transmitted  through  a  frame-plate,  but 
if  we  undertake  to  move  the  pointed  rod  over  the  surface 
of  the  frame-plate  we  are  resisted  at  once  by  the  oppo- 
sition which  the  walls  of  the  depression  in  the  plate  into 
which  the  pointed  end  of  the  rod  enters  affords.  Surely, 
if  we  conceive  of  two  Sessions  frame-plates,  one  of  which 
is  furnished  with  ten  thousand  conical  depressions  in  its 
surface,  and  the  other  frame-plate  has  ten  thousand  pointed 
bosses,  so  that  each  pointed  boss  on  the  one  plate  will 
have  a  depression  in  the  fellow- plate  to  enter,  the  resist- 
ance which  such  plates  constituting  a  part  of  car-body 
frames  would  furnish  against  the  movements  of  the  sur- 
faces over  each  other  would  be  ten  thousand  times  great- 
er than  the  resistance  which  would  be  furnished  by  a  sin- 


26 

gle  conical  point  entering  a  single  depression,  and  yet  the 
pressures  upon  the  two  surfaces  in  contact  would  be  the 
same,  and  the  law  as  formulated  would  still  be  true,  but 
have  no  application  in  the  case  supposed.  Two  Sessions 
frame-plates  are  analogous  in  their  character  to  the  illus- 
tration above  given.  The  surfaces  are  not  smooth;  their 
extent  of  area  furnishes  opportunity  for  a  great  number  of 
elevations  on  the  one  to  enter  depressions  on  the  other, 
and  thus  oppose  any  movement  of  their  surfaces  over 
each  other,  partly  as  the  result  of  the  spring  pressure  ap- 
plied to  hold  such  surfaces  in  contact,  and  partly  as  the  re- 
sult of  the  interlocking  of  their  surfaces  with  each  other, 
due  to  the  number  of  points  on  either  which  can  enter  de- 
pressions in  the  otheV,  and  thus  mechanically  interpose  an 
obstacle  which  is  not  scientifically  "  friction,"  but  a  posi- 
tive physical  resistance. 

It  is  a  well-known  fact  that  a  wide  belt  will  transmit 
more  power  than  a  narrow  one.  Now,  if  the  law  that 
friction  depends  upon  pressure  and  character  of  surface, 
and  not  upon  area,  is  true  in  the  sense  in  which  the  defend- 
ants seek  to  apply  it,  it  would  follow  that  a  belt  one  inch 
in  width  would  transmit  as  much  power  as  a  belt  ten 
inches  in  width,  provided  the  pressure  upon  the  driving 
pulley  were  the  same.  Mr.  Sessions  has  treated  of  this 
matter  in  his  affidavit,  to  which  I  respectfully  refer  the  at- 
tention of  the  court.  It  is  a  matter  of  common  knowledge 
that  a  belt  will  slip  upon  a  machine  on  account  of  its  ina- 
bility to  transmit  the  power.  It  will  be  capable  of  exert- 
ing a  greater  driving  force  in  case  the  belt  be  tightened, 
but  this  has  the  effect  to  unduly  wear  the  bearings  of  the 
shaft.  Consequently  the  remedy  is,  in  such  a  case,  to  apply 
a  wider  belt,  without  straining  the  pulley  bearings.  The 
reason  why  the  wide  belt  will  exert  a  greater  driving 


27 

power  is  the  same  in  principle  as  in  the  illustration  previ- 
ously given.  Other  factors  and  forces  beside  mere  fric- 
tion are  brought  into  play. 

THE  DEFENDANT'S  INFRINGEMENT. 

Understanding  that  the  characteristic  feature  of  inven- 
tion set  forth  in  the  Sessions  patent  is  that  the  car-body 
shall  be  provided  with  a  frame-shaped  plate  arranged  in 
a  vertical  plane  substantially  parallel  with  a  vertical  trans- 
verse plane  passing  through  the  car-body,  and  projected 
by  means  of  powerful  backing  springs  for  a  distance  be- 
yond the  extreme  end  of  the  car,  so  that,  upon  the 
coupling  of  two  cars  the  pressing-out  springs  of  the  frame- 
plates  shall  become  com  pressed,  and,  exerting  their  pressure 
upon  the  plates,  cause  frictional  surfaces  substantially  of 
the  height  of  the  car-body  to  continue  constantly  in  con- 
tact, whereby,  in  addition  to  other  advantages,  there  will 
be  created  a  resistance  to  oppose  the  tendency  of  the  cars 
to  sway  laterally  when  in  motion;  keeping  also  in 
mind  that  these  frame-plates  are  combined  with  the  car- 
bodies  by  means  of  sliding  connections,  so  that,  while 
they  have  a  moment  in  the  direction  of  the  length  of  the 
car,  they  are  prevented  from  having  an}'  side  wise  move- 
ment independent  of  the  movement  of  the  car-bodies,  and 
thus  constituting  a  frame  extension  of  the  car  superstruct- 
ure, it  is  now  proper  to  turn  to  an  examination  of  the 
vestibule  additions  which  have  been  applied  by  the  de- 
fendants to  their  cars,  in  order  to  ascertain  whether  it  is  not 
true  that  there  has  been  a  direct  and  complete  appropria- 
tion of  the  Sessions  improvement. 

It  is  apparent  at  a  glance  that  the  whole  vestibule  addi- 
tion has  been  taken.     It  is  difficult  to  distinguish  one  train 


28 

from  the  other.  The  general  appearance  of  the  vestibule 
additions,  the  arrangement  of  doors  and  entrance  steps, 
the  domed  lantern  in  the  roof  to  light  the  entrance,  have 
all  been  copied.  This  is  important,  perhaps,  only  as  show- 
ing the  motive  and.  purpose  of  the  defendants.  It  is  con- 
sistent with  their  entire  conduct.  The  patent  in  suit  does 
not  relate  to  the  vestibule  as  a  whole,  but  to  a  component 
of  the  vestibule,  or  an  appliance  which  can  with  great  ad- 
vantage be  used  in  combination  with  the  vestibule,  or  can 
be  employed  in  the  event  that  the  platforms  are  not  en- 
closed. It  is  clear  that  a  heavy  frame-plate  is  used  by  the 
defendants,  and  that  this  plate  is  combined  with  the  car- 
body  so  as  to  have  a  longitudinal  movement,  but  to  be 
incapable  of  sidewise  movement.  It  is  connected  at  the 
top  with  the  car  by  means  of  strong  rods  or  bars  attached 
to  the  frame-plate  at  one  end,  and  combined  with  the  car- 
body  by  means  of  guides  within  which  such  rods  can  slide. 

The  frame-plate  at  the  foot  is  combined  directly  with 
the  main  platform  buffer  spring,  substantially  in  the  same 
way  as  the  arrangement  shown  in  the  Sessions  patent. 
The  only  formal  difference  that  can  be  found  in  the  two 
organizations  is  the  immaterial  one  that  the  defendants 
have  inserted  a  strong  elliptic  spring  to  press  outward 
the  frame-plate  at  the  top,  instead  of  employing  two 
separate. coiled  springs.  The  effect  of  this  elliptic  spring 
is  necessarily  to  force  outward  the  frame-plate  with  all 
the  force  which  is  due  to  the  spring.  At  the  same  time, 
notwithstanding  that  such  spring  is  made  fast  to  the 
frame-plate  and  to  the  framing  at  points  near  the  center 
of  the  spring,  the  frame-plate  itself  is  incapable  of  any 
sidewise  movement  independently  of  the  car-body,  on  ac- 
count of  the  presence  of  the  sliding  rods  attached  to  the 
corners  of  the  frame-plate,  as  well  as  the  attachment  at 


29 

the  foot  of  the  buffer  springs.  It  is  immaterial  whether 
the  elliptic  spring  of  the  defendants  is  as  powerful  as  the 
two  coiled  springs  of  the  plaintiff,  or  not.  It  is  apparent, 
on  the  slightest  examination,  that  the  powerful  buffer 
springs  at  the  foot  of  the  frame-plate  exert  their  influence, 
whatever  it  may  be,  to  force  the  frame-plate  outward, 
precisely  the  same  as  in  the  Pullman  construction.  It  is 
also  apparent  that  the  full  power  of  the  elliptic  spring 
operates,  in  addition,  to  force  outward  the  top  of  the 
frame-plate,  and  that  such  force  is  applied  under  the  most 
favorable  conditions  for  opposing  a  tendency  in  the  cars 
to  oscillate. 

The  testimony  of  Mr.  Sessions  on  the  question  of  the 
strength  of  the  spring  in  the  practical  structure  which 
the  defendants  have  made  and  are  operating,  is  clearly  set 
forth  in  his  affidavit.  He  says  that  his  own  physical 
strength,  aided  by  that  of  two  other  strong  men,  was 
unable  to  compress  the  friction  plates  in  the  defendants'  cars, 
notwithstanding  that  their  united  force,  exerted  by  bracing 
themselves,  was  applied  at  a  point  not  farther  than  a  foot 
from  the  end  of  the  top  edge  of  the  plate;  and  he  declares 
that  the  united  efforts  of  the  three  failed  to  produce  the 
slightest  impression,  or  induce  the  slightest  movement  in 
three  of  the  plates  upon  which  they  exerted  their  strength. 
The  spring  which  pressed  out  the  fourth  plate  was  some- 
what weaker,  but  they  were  unable  to  move  it  for  a  dis- 
tance exceeding  the  fourth  of  an  inch.  Mr.  Sessions 
declares  that  the  pressure  upon  the  lower  portion  of  the 
plate  in  the  defendants'  structure  is  not  less  than  eighteen 
thousand  pounds,  and  that  at  the  top  of  the  plates  is  not 
less  than  four  hundred  pounds.  Mr.  Sessions  further  says 
that  the  face-plates  in  the  defendants'  cars  bore  evidence 
of  wear  from  frictional  contact  with  each  other,  and  that 


30 

in  fact  they  showed  as  much  evidence  of  wear  during  the 
short  time  that  they  have  been  in  operation,  as  is  exhibited 
by  the  plates  on  the  vestibuled  train  which  have  been  in 
use  for  several  months. 

A  point  is  made  in  argument  by  Brother  Payson  that 
the  model  of  the  defendants'  cars  which  has  been  con- 
structed to  an  exact  scale  illustrates  that  the  frame-plates 
are  incapable  of  preventing  oscillation.  To  this  I  reply 
that  the  model  is  built  on  a  scale  of  one-twelfth  the  size  of 
the  full  structure.  The  plates  are  only  one-twelfth  the 
thickness  of  those  in  use.  It  does  not  follow,  however, 
that  the  model  weighs  only  one-twelfth  the  weight  of  a 
full-sized  car.  A  child  could  overturn  this  model;  twelve 
children  could  not  overturn  a  full-sized  car.  In  the  model 
the  effect  of  mass  is  eliminated.  An  elliptic  spring  one- 
twelfth  the  size  of  the  actual  spring  can  be  easily  com- 
pressed between  the  thumb  and  forefinger,  but  twelve 
times  that  degree  of  pressure  would  not  make  the  slight- 
est impression  upon  the  full  sized-spring.  This  fact  is  so 
elemental  and  obvious  that  it  is  only  necessary  to  state  it. 

I  cannot  consider  it  necessary  for  me  to  dwell  longer 
upon  the  patent  fact  that  the  defendants  have  clearly  made 
use  in  their  cars  of  the  Sessions  construction,  and  that  the 
only  departure  in  arrangement  is  confined  entirely  to  the 
substitution  of  a  heavy  elliptic  spring  in  place  of  two 
individual  coiled  springs.  It  is  manifest,  however,  that 
the  elliptic  spring  performs  the  same  kind  of  office,  and 
for'the  same  end,  which  is  performed  by  the,  coiled  springs 
of  the  Sessions  device. 

Several  of  the  cars  which  belong  to  the  defendants' 
equipment  were  constructed  by  the  Pullman  Company  for 
use  on  their  line.  They  are  of  the  best  known  form  of 


construction  at  the  time  that  they  were  built.  It  never 
entered  into  the  mind  of  any  man  that  it  was  possible  to 
put  a  barber  shop  into  one  of  these  cars  until  after  the 
vestibule  train  had  been  constructed  and  this  novelty 
introduced,  but  the  defendants  hastened  to  apply  to  these 
cars  the  vestibule  addition  and  the  Sessions  appliance  to 
prevent  oscillation,  and  straightway  set  up  their  barber 
shop.  Moreover,  Mr.  Pullman  coined  an  adjective  de- 
scriptive of  his  train,  and  by  that  name  it  has  been  known 
and  advertised.  The  defendants,  immediately  upon 
putting  their  train  into  service,  advertised  it  as  a  vestibule 
train  both  in  the  public  prints  and  in  the  folders  which 
they  distributed  to  attract  attention  to  their  new  departure. 

THE  PRIOR  PATENTS  THAT  HAVE  BEEN  SET  UP. 

I  ask  now  your  Honors'  consideration  of  the  several 
prior  subjects  which  have  been  presented  by  the  defend- 
ants as  tending  either  to  belittle  the  invention  set  forth  in 
the  Sessions  patent,  or  to  have  the  effect  of  substantially 
anticipating  it.  A  brief  consideration  of  each  one  of  the 
different  devices  described  in  prior  patents  will  clearly 
show  that  the  subject-matter  which  distinguishes  the  Ses- 
sions improvement  is  not  to  be  found  in  any  one,  or  in  all 
of  them  put  together.  I  shall  confine  my  attention  to 
these  patents  and  prior  subjects,  which  are  referred  to  by 
Mr.  Payson  in  his  argument,  as  possessing  importance  in 
his  estimation,  and  deem  it  unnecessary  to  consider  the 
many  other  patents  which  are  set  up  in  the  answer  upon 
which  no  especial  point  is  laid  by  the  defendants  them- 
selves. 

So  far  as  all  those  prior  devices  are  concerned  which 
consist  in  the  employment  of  platform  buffers  of  various 


32 

kinds,  or,  in  other  words,  buffers  under  opposing  spring 
pressures  applied  in  planes  substantially  coinciding  with 
the  main  platforms  of  car-bodies,  I  have  only  to  say  that 
they  contain  no  suggestion  of  the  Sessions  improvement. 
Especially  is  this  true  in  the  case  of  cars  mounted  on 
trucks  according  to  the  American  system.  The  effect  of 
such  buffers  is  indeed  to  ameliorate  the  effects  of  a  col- 
lision, and  undoubtedly  to  the  extent  to  which  in  use  their 
faces  bear  against  each  other  in  frictional  contact  they 
have  a  tendency  to -diminish  the  oscillations  of  the  plat- 
forms. But  it  must  always  be  remembered  that  the  car 
bodies  in  use  on  American  railways  are  not  rigidly  attached 
to  the  trucks,  but  are  combined  with  those  trucks  by  means 
of  pintles,  in  order  to  enable  the  trucks  to  sway  freely 
underneath  the  car  bodies.  Now,  while  it  may  be  ad- 
mitted that  the  effect  of  such  buffers  is  in  the  direction  of 
opposition  to  the  tendency  to  oscillation,  it  is  at  the  same 
time  clear  that  the  force  in  that  direction  is  applied  at  the 
most  disadvantageous  point.  It  is  substantially  in  the 
plane  which  coincides  with  the  axis  upon  which  the  car 
oscillates,  instead  of  being  applied  at  a  point  or  points  ele- 
vated above  such  axis,  whereby  the  powerful  factor  of 
leverage  comes  into  play  to  co-operate  with  any  spring 
pressure  applied  at  such  points. 

THE  SIMONS  ENGLISH  PATENT,  JUNE  15,  1847. 

In  this  patent  the  improvement  is  shown  as  applied  to 
an  English  railway  train  in  which,  as  before  explained, 
the  platforms  are  combined  substantially  rigidly  with  the 
running-gear.  The  object  of  the  improvement  which  has 
any  connection  with  the  present  question  is  as  set 
forth  in  the  fourteenth  division  of  the  specification. 


33 

This  improvement  is  the  application  of  what  the  pat- 
entee calls  "  outer  buffers,"  to  distinguish  them  from 
the  main  buffers  placed  in  the  line  of  the  plat- 
forms "  so  that  in  case  of  a  violent  shock  or  pres- 
"  sure  of  the  carriages,  etc.,  upon  each  other,  or  in  case 
"  of  a  collision,  such  top  buffers  may  come  in  contact  with, 
"  and  press  upon,  each  other"  The  thing  that  was  to  be 
prevented  was.  the  tendency  of  these  short  English  cars 
to  rear  up  on  their  hind  wheels  and  tumble  over  upon 
each  other  in  case  of  a  collision.  It  was  not  designed  or 
intended  that  these  top  buffers  should  be  in  contact  at  all 
under  ordinary  conditions  so  as  to  exert  spring  pressure 
upon  each  other  to  prevent  oscillation.  This  is  manifest 
from  the  shape  of  the  faces  of  the  buffers,  which  are  in 
the  form  of  sections  of  spheres,  and,  while  they  would  be 
operative,  when  brought  together  in  case  of  a  collision,  to 
prevent  the  cars  from  rising  on  their  hind  axles,  such 
form  of  buffer  would  be  absolutely  impracticable  for  use 
as  a  means  for  preventing  oscillation.  Moreover,  there 
is  another  reason  why  there  could  not  practically  be  ap- 
plied to  English  railway  carriages  any  system  of  upper 
buffers  in  constant  frictional  contact.  This  is  set  out  very 
plainly  in  the  affidavit  of  Mr.  A.  B.  Pullman  and  others. 
The  superstructures  of  English  carriages  are  about  the 
strength  of  the  ordinary  well-known  Concord  coaches. 
They  are  not  intended  to  bear  pressure  except  under  ex- 
traordinary circumstances.  Finally,  there  is  no  sugges- 
tion whatsoever  in  the  specification  that  the  top  buffers  of 
the  Simons  patent  were  to  perform  any  other  office  or  ef- 
fect than  to  come  in  contact  with,  and  press  upon  each 
other  whenever  a  collision  or  sudden  arresting  of  the 
movement  of  the  train  caused  the  lower  platform  buffers 
to  be  so  far  compressed,  as  the  result  of  such  collision,  as 


34 

to  bring  into  contact  the  faces  of  the  upper  buffers,  and 
thus  present  a  practical  obstacle  to  the  rearing  upward  of 
the  cars  of  a  train. 

Reference  is  made  in  this  patent  to  means  for  prevent- 
ing the  oscillations  of  the  carriages.  This  shows  plainly 
that  from  a  very  early  period,  means  and  devices  were 
sought  for  to  prevent  such  disagreeable  effects.  The 
mode,  however,  of  accomplishing  it  in  this,  patent  is  not 
the  Sessions  mode  of  interposing  a  vertical  buffer  between 
two  railroad  carriages,  extending  from  the  platform  ver- 
tically upward  to  a  point  near  the  tops  of  the  carriages, 
but  it  consists  simply  in  substituting  for  a  single  pair  of 
buffers  applied  at  the  center  of  the  platform  two  pairs  of 
buffers  applied  to  the  platform,  but  near  its  outer  edges. 
Undoubtedly,  the  employment  of  two  buffers  spread  apart 
so  as  to  occupy  a  base  line  approximating  closely  to  the 
width  of  the  platform,  would  have  a  tendency  to  prevent 
oscillation  in  an  English  carriage  beyond  what  would  be 
accomplished  by  a  single  pair  of  buffers  placed  in  line 
and  applied  at  the  middle  longtitudinal  line  of  the  car- 
riages, and  if  the  carriage  be  only  eighteen  or  twenty  feet 
in  length,  and  be  rigidly  connected  with  the  running  gear, 
and  be  of  a  height  no  greater  than  about  seven  feet,  two 
inches,  undoubtedly  this  device  would  practically  fulfill 
reasonable  requirements.  (Affidavit  of  David  J.  Powers, 
pp.  127-132.) 

ENGLISH  LETTERS  PATENT  TO  W.  AND  G.  RICHARD- 
SON, OCTOBER  5,  1857. 

This  patent  is  for  the  same  subject  exactly  as  the  prior 
patent  to  Simons.  (Affidavit  of  David  J.  Powers,  pp, 
'32,  133.) 


35 
ENGLISH  PATENT  TO  GEORGE  D^ER,  OCTOBER  6,  1863. 

The  invention  set  forth  in  this  patent  is  substantially 
the  same  as  that  set  forth  in  the  prior  patents  considered. 
The  difficulty  to  be  remeded,  is,  the  toppling  over 
of  the  carriages  upon  each  other  in  the  event  of  a  collis- 
ion. The  remedy  applied  was  the  application  of  upper 
buffers,  which  are  not  described  to  be  in  constant  contact 
to  prevent  oscillation,  but  are  only  to  come  into  play  in 
the  event  of  a  collision  or  sudden  stoppage  of  the  train. 
This  is  clear,  from  the  fact  that  the  patentee  says  that 
the  "  play  of  the  upper  buffers  shall  be  about  one-half  of 
the  lower  set."  This  would  naturally  follow.  The  lower 
set  of  buffers  have  their  springs  compressed  as  a  result  of 
an  obstacle  in  the  way  of  the  movement  of  the  train, 
whereupon  the  upper  buffers  are  brought  into  contact, 
and  their  springs  have  a  less  extent  of  play  than  the 
lower  set  of  buffers.  Oscillation  is  not  prevented  in  the 
slightest  degree  as  the  result  of  the  employment  of  the 
upper  buffers,  and  if  it  were  intended  that  their  faces 
should  be  in  contact,  it  would  follow  of  necessity  that  the 
play  of  the  springs  would  be  required  to  be  as  great  as  the 
play  of  the  lower  set  of  springs. 

This  patentee  understood  that  it  was  desirable  to  pre- 
vide  some  means  to  prevent  oscillation,  but  his  plan  was 
not  the  employment  of  friction  surfaces  in  constant  con- 
tact to  accomplish  that  end,  but  he  proposed  to  increase  the 
diameter  of  the  wheels  of  the  running  gear  to  about  five 
feet  and  higher,  to  be  equal  to  the  base  of  breadth  of  the 
car,  so  as  "  to  resist  the  overhanging  weight  or  tendency  to 
"  turn  over  and  to  give  greater  steadiness  to  the  motions  of 
"the  carriage  generally."  The  buffer  in  this  case  had  its 
head  in  the  form  of  a  section  of  a  sphere,  which  is  the 


3° 

common  form  of  buffers  employed  on  English  railroads. 
The  object  of  this  spherical  form  doubtless  was  to  enable 
the  train  to  easily  round  curves  without  inducing  that 
rigidity  which  would  result  to  a  certain  extent  in  the 
event  that  the  faces  of  the  buffers  were  flat  planes. 
(Affidavit  of  David  J.  Powers,  pp.  133-136.) 

ENGLISH  PATENT  TO  ROCK  CHIDLEY,  JANUARY  n,  1865. 

The  whole  device  in  this  patent  consists  in  the  employ- 
ment of  two  rods  near  each  side  of  the  car,  which  are 
similar  to  rods  for  supporting  curtains.  It  was  intended 
that  the  platforms  should  be  enclosed  by  means  of  a  cur- 
tain, and  the  rods  were  to  give  support  to  the  same.  The 
ends  of  each  of  these  rods  were  provided  with  a  light 
spiral  spring  which  took  a  bearing  against  the  adjacent 
car,  and  the  purpose  of  this  was  to  compensate  for  the 
lengthening  and  shortening  of  the  distances  between  cars 
in  rounding  curves.  The  spring  in  fact  served  the  pur- 
pose substantially  of  lazy  tongs,  and  is  a  device  very  anal- 
ogous to  the  lazy-tongs  gates  or  guards  used  on  the 
elevated  railroads  in  the  city  of  New  York. 

(Affidavit   of  David  J,    Powers,    pp,    136, 
I37-) 

ENGLISH  LETTERS  PATENT  TO  MICHAEL,  ANGELO  GAR- 

VEY. 

This  patent  was  not  presented  to  our  notice  until  the 
argument.  It  is  not  made  the  subject  of  discussion  by  the 
experts  upon  either  side.  It  is  perfectly  easy,  however, 
to  comprehend  its  true  import,  and  I  have  had  an  illustra- 
tive model  made  which  will  perfectly  exhibit  its  ac- 
tion. In  one  sense  it  is  more  important  than  any  other 


37 

patent  which  has  been  introduced  by  the  defendants,  not 
because  it  serves  in  any  degree  to  weaken  or  to  impair 
the  Sessions  combination,  but  because  it  shows  plainly,, 
that  the  fact  that  oscillation  exists  in  railway  trains  has 
been  recognized  and  sought  to  be  prevented  for  a  long1 
period  of  time.  In  English  railway  carriages,  as  we  al- 
ready have  seen,  this  disagreeable  concomitant  of  railway 
travel  is  by  no  means  so  serious  as  in  the  case  of  Ameri- 
can railway  trains,  and  for  the  reason,  as  already  ex- 
plained, that  the  carriages  of  English  railways  are  in  a 
measure  rigidly  combined  with  the  running  gear,  while 
American  carriages  are  usually  three  times  and  a  half  the 
length  of  an  English  car,  are  three  feet  higher,  and  are 
mounted  upon  trucks  upon  which  they  can  sway.  More- 
over, the  top  hamper  of  an  American  car,  especially 
if  used  for  sleeping-car  purposes,  is  vastly  greater  than 
anything  that  can  be  found  in  an  English  carriage,  espe- 
cially when  the  upper  berths  are  occupied,  and  the  in- 
cidental weight  elevated  so  high  above  the  point  of  oscil- 
lation. And  yet,  the  disadvantages  of  oscillation  were 
recognized  in  English  carriages,  and  means  were  devised 
for  diminishing  it. 

The  plan  proposed  by  Garvey  was  to  employ  what 
may  be  very  properly  called  a  frame-plate  extending  be- 
yond the  ends  of  each  of  the  cars.  This  plate  was  at- 
tached in  a  peculiar  way  to  sliding  bars,  but  such  plate 
was  not  rigidly  attached  to  such  bars  so  as  to  constitute 
an  extension  of  the  railway  carriage.  These  plates  were 
faced  with  felt,  and  were  nut  intended  to  slide  on  each 
other  as  the  frictional  surfaces  in  contact  of  the  Sessions 
plates  are  intended  to  move  over  each  other,  but  it  was  de- 
signed that  they  should  be  held  in  fast  contact  with  each 
other.  Moreover,  inasmuch  as  the  sliding  rods  which 


38 

combined  them  with  the  car-bodies  were  not  rigidly  at- 
tached to  such  plates,  but  were  combined  with  them  by 
means  of  volute  springs,  it  is  manifest  that  the  plates 
would  not,  as  the  Sessions  plate  must  necessarily  do,  par- 
take of  the  movements  laterally  of  the  railway  carriages. 
The  purposes  of  the  volute  springs  was  to  interpose  a 
spring  resistance  to  the  lateral  movement  of  the  car- 
bodies  and  the  rods  (as  distinguished  from  rods  and 
frame-plates)  connected  therewith.  Consequently,  when 
a  railway  carriage  swayed,  the  rods  combined  with  such 
carriages  would  partake  of  the  same  movement.  The 
plates,  however,  did  not;  they  remained  in  contact  with 
each  other,  and  the  tendency  to  sidewise  movement  of 
the  carriages  was  resisted  by  the  volute  springs.  This 
device  undoubtedly  possessed  efficiency.  It  is  not  practical 
for  adoption  to  the  American  carriage,  on  account  of  its 
complexity  and  its  unsuitableness  in  case  there  be  required 
a  continuous  passagefrom  car  to  car.  It  bears  no  relation, 
however,  to  the  Session  invention,  except  in  the  general 
and  immaterial  matter  that  it  proposes  to  interpose  a  re- 
sistance to  the  tendency  of  cars  to  oscillate.  It  is  not  the 
device  at  all  of  the  Sessions  patent.  In  the  Sessions  con- 
struction, reliance  is  had  upon  an  altogether  different  set 
of  forces  and  a  different  combination  of  operative  devices. 
The  plates  which  are  to  be  in  contact  are  held,  in  the 
Sessions  device,  in  that  relation  under  powerful  opposing 
pressures.  The  purpose  is  to  develop  frictional  resist- 
ance. Unlike  the  Garvey  plates,  they  are  made  fast  to 
the  sliding  rods  and  main  buffer  devices  which  connect 

O 

them  with  the  car  and  compel  such  frame-plates  to  be 
substantially  integral  with  the  car-bodies;  or,  in  other  wods, 
a  frame-like  extension  of  the  car-bodies.  When  a  car 
provided  with  the  Sessions  appliance  commences  to  sway, 


39 

the  friclional  contact  of  the  surface  of  its  frame-plate 
with  the  fellow  frame-plate  of  the  next  adjacent  car,  pre- 
sents a  hindrance  to  such  oscillation,  and  which  is  meas- 
ured by  the  extent  of  the  surfaces  and  the  character  of  the 
surfaces  in  contact,  and  the  degree  of  spring  pressure. 
Again,  there  is  another  marked  difference  in  the  opera- 
tion of  these  two  devices  which  needs  only  to  be  stated  to  be 

•/ 

appreciated.  In  the  Garvey  structure  the  resisting  power 
is  a  constant;  it  is  the  measure  simply  of  the  power  of  the 
volute  springs.  In  the  Sessions  organization,  however, 
the  force  which  is  applied  to  press  the  frame-plates  to- 
gether, and  thus  increase  the  degree  of  frictional  resist- 
ance, is  not  an  absolute  constant.  True,  the  direct  press- 
ure of  the  top  and  bottom  springs  is  a  constant  quantity 
which  is  never  lessened,  but  when  the  train  is  suddenly 
checked  as  the  result  of  a  collision,  or  from  a  sudden  ap- 
plication of  the  brakes,  the  cars  of  the  train  press  or  crowd 
upon  each  other,  and  then  the  power,  with  the  spring  press- 
ure which  is  applied  to  the  frame-plates,  is  greatly  in- 
creased. Now,  exactly  the  same  thing  is  true  when  a 
train  is  running  over  an  ordinarily  crooked  roadbed.  It 
is  just  at  that  time  that  there  is  a  tendency  on  the  part  of 
the  train  to  set  up  the  greatest  degree  of  oscillation.  The 
locomotive  and  the  baggage-car  enter  upon  the  curve 
sooner  than  the  rest  of  the  train.  The  necessary  tendency 
is  to  check  the  movement  of  the  locomotive  and  baggage- 
car,  because  the  resistance  to  the  locomotive  is  increased 
when  it  enters  upon  the  curve.  The  momentum  of  the 
remaining  cars  in  the  train  causes  them  to  press  forward 
upon  each  other,  and  thus  the  factor  of  constant  pressure 
in  the  Sessions  device  is  greatly  increased  on  the  frame- 
plates  as  the  result  of  these  conditions.  Now  this  is  an 
advantage  which  can  eome  only  from  the  employment  of 


4o 

that  device  or  combination  of  means  which  is  expressed 
in  the  Sessions  patent  as  the  combination  with  the  end  of 
a  railway  car  of  a  frame-plate  or  its  equivalent,  backed  by 
springs,  arranged  with  its  face  in  a  vertical  plane,  and 
normally  projecting  beyond  the  end  of  the  cars,  whereby, 
upon  the  coupling  of  two  cars,  not  only  will  a  spring 
buffer  be  interposed  between  the  superstructures  of  such 
adjacent  cars  above  their  platform,  but  also  frictional 
surfaces  under  opposing  spring  pressures,  to  prevent  the 
racking  of  the  car-frames  and  to  oppose  the  tendency  of 
the  cars  to  sway  laterally  when  in  motion. 

A  marked  characteristic  of  the  Garvey  structure  is  ex- 
pressed in  the  peculiar  name  which  he  gave  to  his  device. 
He  called  it  a  "  spondyloyd."  This  means  that  it  was 
an  articulated  connection,  and  that  was  precisely  its  char- 
acteristic. The  articulation  was  effected  by  means  of 
volute  springs,  and  the  patentee  runs  the  parallel  between 
the  spinal  cord  in  the  human  fra.ne  encased  within  the 
vertebrae  of  the  spinal  column  and  his  spondyloyd  train 
enclosing  passengers.  The  grand  characteristic  of  the 
Sessions  appliance  is  that  it  does  not  belong  to  the  order 
of  vertebrated  animals,  and  in  that  respect  is  in  marked 
contrast  with  the  Smith  construction  and  others  of  that 
type  presently  to  be  introduced. 

I  conclude  this  branch  of  the  discussion,  which  em- 
braces all  of  the  prior  English  patents  which  are  of  the 
least  importance,  with  the  repetition  of  the  statement  that 
none  of  them  contains  the  least  hint  or  suggestion  of  the 
Sessions  organization.  It  is  also,  in  this  connection,  worth 
remembering  that  the  Pullman  Company  are  at  present 
engaged  in  the  construction  of  a  train  of  vestibuled  cars 
for  use  on  the  London,  South  Coast  and  Brighton  Rail- 
way in  England.  Up  to  this  time  it  does  not  appear,  at 


41 

least,  that  English  railway  managers  regard  the  vesti- 
bule improvement  either  as  of  little  consequence  or  as  old 
in  the  art. 

THE  CHARLES  S.  SMITH  PATENT,  OCTOBER  24,   1882. 

This  is  an  American  patent  which  is  owned  by  the 
Pullman  Company.  It  illustrates  one  of  the  several  devices 
which  had  been  used  or  experimented  with  at  different 
rimes  for  the  purpose  of  enclosing  the  ends  of  railway 
carriages  so  as  to  make  a  continuous  passage-way  be- 
tween adjacent  cars  and  to  render  the  passage  from  car 
to  car  more  easy  and  comfortable.  It  is  essentially  a 
"  spondyloyd"  attachment.  It  consists  of  a  number  of 
bows,  like  the  bows  of  a  carriage,  which  serve  to  give 
support  to  some  flexible  material,  like  canvas,  so  as  to 
form  a  hood  or  enclosure  of  the  platform.  These  ribs  are 
stated  to  be  "light  ribs  or  frame-pieces,"  to  which  the 
flexible  material  is  secured.  The  ends  of  two  bows  in 
contact  are  preferably  covered  with  some  backing  material 
so  as  to  make  a  tight  joint  and  prevent  the  access  of 
cinders,  and  it  is  also  suggested  in  the  specification  that 
springs  may  be  arranged  in  the  sides  of  the  hoods  so  that 
their  faces  may  be  forced  and  held  against  each  other,  but 
this  is  stated  to  be  usually  not  necessary.  There  is  not 
the  slightest  suggestion  in  the  specification  that  this  ap- 
pliance would  have  any  tendency  whatsoever  to  interpose 
any  resistance  to  the  tendency  of  cars  to  oscillate.  The 
absence  of  any  such  statement  is  due  to  the  fact  that  it 
wrs  designed  and  intended  that  this  connecting  hood  or 
canopy  should  be  an  articulated  structure,  and  should  be 
free  to  have  a  lateral  movement  in  itself  independently 
of  the  movement  of  the  car  bodies.  In  order  to  con- 


42 

vert  it  into  a  Sessions  structure,  it  is  necessary 
that  the  front  bows,  which  are  intended  to  abut 
against  each  other,  should  be  connected  at  the  top  and 
bottom  with  the  car-bodies  by  a  rigid  connection,  which 
would  compel  such  bows  or  frames  to  partake  of 
the  movements  of  the  car-body.  Then,  if  the  surfaces 
in  contact  and  the  springs  which  press  them  outward 
were  capable  of  developing  frictional  resistance,  there 
would  be  embodied  the  Sessions  improvement.  It  is 
plain,  however,  from  a  reading  of  the  Smith  specification 
and  an  inspection  of  the  drawings,  that  no  such  contriv- 
ance entered  into  the  mind  of  the  patentee.  The  whole 
end  which  he  sought  to  accomplish  was  to  apply  a  can- 
vas or  flexible  jointed  connection  between  the  ends  of 
railway  cars  which  would  enable  such  cars  to  be  fur- 
nished with  an  inclosed  passageway  between  their  ends, 
but  which  would  interpose  the  least  possible  resistance  to 
the  free  movement  of  the  cars  both  in  rounding  curves 
and  in  oscillating.  There  is  a  wide  difference,  as  the 
court  will  recognize,  between  the  attachment  of  frame 
plates  serving  to  make  a  connection  between  the  adjacent 
ends  of  cars  which  are  attached  to  flexible  material, 
so  as  to  be  in  every  sense  articulated,  and  frame  plates 
which  are  attached  to  car-bodies  so  as  to  form  extensions 
of  such  bodies.  In  the  one  case,  frictional  contact  be- 
tween such  frame-plates  opposes  a  tendency  to  oscillation 
on  the  part  of  the  cars;  in  the  other  case,  the  frame- 
plates  present  not  the  least  obstacle  to  an  oscillatory  tend- 
ency on  the  part  of  the  car-bodies. 

THE  DEFENDANT'S  MODEL  OF  THE  SMITH  PATENT. 

I  cannot  too  emphatically  condemn  the  model  which  has 
been    presented    by  the  defendants  of  the   Smith  patent. 


43 

The  thing  that  they  show  is  substantially  a  model  of  the 
Sessions  improvement.  It  is  in  no  sense  a  true  model 
of  the  Smith  device,  and  the  court  will  not  be  deceived 
by  it.  Instead  of  being  a  spondyloyd,  or  articulated  ap- 
pliance, it  is  represented  in  the  model  as  combined  with 
the  car-body  by  means  of  sliding  rods  forced  outward  by 
springs.  It  is  the  very  opposite  of  the  Smith  structure. 
The  misrepresentation  is  too  gross  and  flagrant  to  cause 
any  apprehension  as  to  its  misleading  the  court. 

THE  HOOD-FRAMES  OF  THE  MICHIGAN  CENTRAL  RAIL- 
ROAD. 

This  device  has  not  been  employed  for  many  years.  It 
was  intended  to  furnish  a  light  frame  to  support  a  hood 
or  canopy  to  prevent  cinders  from  the  locomotive  falling 
upon  the  platform.  The  complainants  have  in  their  pos- 
session, and  have  made  an  exhibit  in  this  case,  one  of  these 
old  canopy  structures,  and  which  is  open  to  the  inspec- 
tion of  the  court.  The  character  of  the  device  is  shown 
in  the  testimony  of  A.  Longstreet,  page  154;  W.  H.  Fry, 
page  158,  and  H.  H.  Sessions,  page  163.  The  device 
consisted  of  a  light  board  about  one  inch  in  thickness  and 
three  or  four  inches  in  width.  It  was  uniformly  curved 
to  correspond  generally  with  the  curvature  of  the  roof  of 
the  car.  It  was  supported  by  four  rods  at  right  angles, 
with  its  face  near  the  roof  of  the  car,  and  these  rods  were 
provided  with  light  springs  of  about  No.  n  wire,  a  sam- 
ple of  which  we  have  produced,  and  which  would  operate 
to  press  these  frames  outward  so  that  two  adjacent  frames 
would  meet  at  the  transverse  middle  line  of  the  space  be- 
tween two  cars.  This  frame  supported  a  canvas  canopy, 
and  the  only  purpose  and  object  of  the  framework  was  to 


44 

extend  or  to  stretch  such  canopy.  The  faces  of  these  boards 
were  covered  with  thin  sheet  iron.  This  device,  as  I  have 
already  said,  has  been  abandoned  for  many  years.  No 
one  has  the  hardihood  to  testify  that  it  was  ever  designed 
or  intended  to  exert  any  frictional  resistance  to  effect  the 
steadiness  of  a  train.  It  is  manifest  that  no  such  idea  was 
present  in  the  mind  of  any  constructor,  for  the  reason  that 
no  provision  whatsoever  is  made  for  taking  up  the  strain 
which  would  result  in  case  the  springs  were  of  sufficient 
strength  and  the  face  boards  of  proper  material  to  act  as 
spring  buffers.  The  roofs  of  the  cars  would  have  been 
pried  oft'  in  the  event  that  the  device,  as  we  find  it,  had 
ever  been  constructed  with  a  capacity  to  act  as  spring 
buffers  under  constantly  opposing  pressures  sufficient  to 
diminish  oscillatory  movements.  One  can  idealize,  of 
course,  this  structure  by  pointing  out  that  it  was  only 
necessary  to  conceive  the  idea  of  using  a  top  buffer,  and 
then  convert  this  canopy  frame  into  such  a  device  by  en- 
dowing it  with  new  properties  as  the  result  of  an  entire 
reorganization  of  its  members.  It  is  an  instance,  doubt- 
less, of  two  frames  having  face  pieces  which  are  held  ex- 
tended by  means  of  springs  so  as  to  meet  and  give  sup- 
port to  a  canopy-  The  elements  which  enter  into  such 
organization  may  indeed  be  said  to  be  the  same  elements 
which  would  enter  into  an  elevated  buffer;,  that  is  to  say, 
there  are  two  face  boards,  rods  connecting  such  boards 
with  the  car,  and  springs  to  press  them  outwards;  but  the 
device  is  not  a  buffer,  nor  has  it  the  capacities  to  develop 
frictional  resistance  to  oscillation.  When  it  is  converted 
into  such  a  device  it  is  not  the  former  device,  nor  does  it 
differ  from  the  former  device  simply  in  degree — it  is  a 
difference  in  kind.  In  useful  inventions  the  difference  be- 
tween the  new  thing  and  those  things  which  preceded  is- 


45 

frequently  a  difference  in  mere  form,  proportions  and  ar- 
rangement. The  Supreme  court  have  recognized  this  in 
the  case  of  Loom  Co,  v.  Higgins,  105  U.  S.,  591,  in- 
which  they  reply  to  a  former  structure  in  a  loom  which 
was  claimed  to  deprive  the  thing  patented  of  any  patent- 
able  quality,  by  the  language: 

"This  argument  would  be  sound  if  the  combina- 
tion claimed  by  Webster  was  an  obvious  one  for  at- 
taining the  advantages  proposed — one  which  would 
occur  to  any  mechanic  skilled  in  the  art.  But  it  is 
plain  from  the  evidence,  and  from  the  very  fact  that 
it  was  not  sooner  adopted  and  used,  that  it  did  not, 
for  years,  occur  in  this  light  to  even  the  most  skill- 
ful persons.  It  may  have  been  under  their  very 
eyes,  they  may  almost  be  said  to  have  stumbled  over 
it;  but  they  certainly  failed  to  see  it,  to  estimate  its 
value,  and  to  bring  it  into  notice.  Who  was  the  first 
to  see  it,  to  understand  its  value,  to  give  it  shape  and 
form,  to  bring  it  into  notice  and  urge  its  adoption,  is 
a  question  to  which  we  shall  shortly  give  our  atten- 
tion." 

The  same  line  of  reasoning  runs  through  the  opinion 
of  the  Supreme  court  in  Consolidated  Valve  Company  v. 
Crosby  Valve  Company,  113  U.  S.,  157.  In  this  case  there 
was  put  in  evidence  various  English  patents  of  long  prior 
date  which  contained  the  same  elements  as  the  plaintiff's 
device,  and  in  the  same  combination.  The  difference  be- 
tween the  thing  patented  and  these  prior  structures  re- 
sided in  the  presence  of  a  retarding  structure  for  the 
escape  of  steam  from  a  safety  valve,  so  that  the  passage 
for  the  entrance  of  steam  into  a  supplementary,  or  hud- 
dling chamber,  was  always  larger  than  the  area  of  exit. 
The  result,  in  the  opinion  of  the  court,  was  that  the  old 
organization  for  safety  purposes  had  been  reorganized  by 
the  patentee  so  as  to  accomplish  in  that  regard  all  that 


46 

the  previous  structures  did,  and,  in  addition,  accomplish 
an  improved  economy  of  operation.  In  speaking  of  these 
patents  the  court  remarks  (p.  170): 

"  In  regard  to  all  of  the  above  patents,  adduced 
against  Richardson's  patent  of  1866,  it  may  be  gen- 
erally said,  that  they  never  were,  in  their  day,  and 
before  the  date  of  that  patent,  or  of  Richardson's  in- 
vention, known  or  recognized  as  producing  any  such 
result  as  his  apparatus  of  that  patent  produces,  as 
above  defined.  Likenesses  in  them,  in  physical 
structure,  to  the  apparatus  of  Richardson,  in  import- 
ant particulars,  may  be  pointed  out,  but  it  is  only  as 
the  anatomy  of  a  corpse  resembles  that  of  the  living 
being.  The  prior  structures  never  effected  the  kind 
of  result  attained  by  Richardson's  apparatus,  because 
they  lacked  the  thing  which  gave  success." 

I  have  thus  reviewed  every  one  of  the  prior  devices 
upon  which  any  reliance  has  been  placed  by  the  defend- 
ants to  defeat  the  present  motion.  When  they  are  viewed 
individually  and  collectively,  can  an  impartial  rnind  con- 
sider that  they  impair  in  the  slightest  degree  the  validity 
of  that  combination  which  is  the  subject  of  the  Sessions 
patent  which  the  public  have  so  universally  recognized 
and  which  the  defendants  were  so  quick  to  seize? 

The  argument  on  the  part  of  the  defendants,  that  the 
public  would  be  interfered  with,  and  they  put  to  great  ex- 
pense, in  the  event  that  they  are  enjoined  from  using  the 
Sessions  device,  can  be  answered  in  a  few  words.  They 
are  at  liberty  to  use  a  spondyloyd  connection  between  the 
euds  of  their  cars,  and  they  will  then  have  substantially 
the  articulated  organization  of  the  Russian  royal  train. 
Or,  if  they  desire  to  retain  the  ponderous  frame-plates 
which  are  so  important  in  the  Sessions  frictional  contact 
system,  let  them  move  them  backward  so  as  to  be  within 
the  planes  of  the  ends  of  the  cars,  and  then  they  cannot 


47 

have  their  surfaces  bear  against  each  other  under  oppos- 
ing spring  pressures,  to  diminish  the  effects  of  oscillation. 


There  is  only  one  further  consideration,  and  I  conclude. 
I  did  not  advert  to  it  in  the  oral  argument  in  a  crowded 
court-room,  for  the  reason  that  it  would  savor  too  much 
of  that  appeal  to  the  multitude  in  favor  of  a  client,  which 
would  be  more  fitting  for  a  public  gathering  that  for  the 
forum  of  a  court  of  justice.  I  do  not  hesitate,  however^ 
to  state  myself  in  type  before  your  Honors. 

An  attempt  has  been  made  in  the  defendants'  affidavits 
to  belittle  and  cast  a  sneer  at  Mr.  Pullman.  He  is  repre- 
sented in  the  light  of  one  who  is  claiming  for  himself  im- 
provements which  do  not  belong  to  him,  and  which  pos- 
sess in  themselves  no  mechanical  value,  but  have  been 
rendered  attractive  by  the  garb  in  which  they  have  been* 
put.  The  whole  line  of  the  discussion  on  the  part  of  the 
defendants  has  been  in  the  direction  of  belittling,  as  far  as 
possible,  the  present  invention,  to  the  end,  I  suppose,  that 
your  Honors  may  be  induced  not  to  interfere  at  this  stage 
of  the  controversy,  but  allow  the  defendants  to  reap  the 
benefits  of  their  piracy  until  a  final  hearing  upon  full 
proofs  can  be  reached.  I  have  said  all  that  I  deem  to  be 
necessary  upon  the  technical  point  thus  raised.  I  now 
wish  only  to  repel  the  unworthy  aspersion  which  the 
tone  of  the  defendants'  affidavit  seeks  to  cast  against  Mr. 
Pullman  as  the  representative  and  head  of  the  complain- 
ant company. 

All  the  world  knows  that  Mr.  Pullman  is  the  creator  of 
the  sleeping-car  in  its  highest  form  of  development.  All 
prior  structures  have  passed  away  and  been  forgotten. 
The  Pullman  folding  upper  berth  has  made  these  cars  not 


48 

only  comfortable  for  passengers,  but  economical  in  use,  by 
providing  accommodations  for  a.s  many  persons  with  beds 
at  night  as    could  be    reasonably  made  comfortable  with 
sittings  by  day.     This  improvement  was  appropriated  by 
the  predecessors  of  the  defendant  company,  and  they  paid 
heavy  damages    therefor.     It    is    not,  however,  upon  the 
benefits  which  Mr.  Pullman    has   rendered    to   the  whole 
civilized    world   in    sleeping-car  accommodations   that  his 
just  fame   will  rest.     His  chief  glory  is   the    institution  of 
the  model  city  which  bears  his    name,  and    which  is  a  liv- 
ing exponent  of  the  practical   solution  of  one  of  the  great 
problems  of  civilization.      He  has  taught  the  world  a  les- 
son in  social  science,  the  influence  of  which  will  be  endur- 
ing, and  will  in  time  leaven  the  whole  empire  of  the  State 
of  Illinois.     He  has  taught  the   world  that  there  is  no  ne- 
cessary antagonism  between  labor  and  capital,  at  the  same 
time  that  he   is  elevating,  by  a  clear  law  of  evolution,  the 
capacity  of  the  servant  into  the  intelligence  of  the  master. 
Above  all,  he  has  proved  that  by  the  right   application    of 
the  essential  spirit  of  the  scriptures,  a  new  reading  can  be 
given  to  the  text,  that  a  man  cannot  serve  both  God  and 
mammon.     By  the    stimulation    of  social   order  and    the 
practice  of  virtue,  with  the  encouragement  of  industry,  he 
has  aided  in  the  largest  way  the  maintenance  of  that  sys- 
tem of  law  of  his  country,  whose  aid,  as  a  suitor  against  a 
wrong  done   to    his   interests,  he   now    invokes.     By  his 
work,  unparalleled  in  the  history  of   a    private  citizen,  he 
has  performed  the  labors  which  in  the  world's  history  have 
hitherto  been  accomplished  by  the  imperial  power  of  em- 
perors and  kings.     Such  men  have    a    right,  in   the  pres- 
ence of  those  who  have  taken  another's  property,  and  then 
offered  the    insult   of    a    nominal  consideration    to  escape 
prosecution,  to  assert  themselves  with    force  and  dignity. 


49 

The  defendants  may  paint  their  names  upon  their  vesti- 
buled  train;  they  cannot  change  the  truth  that  it  origi- 
nated with  Mr.  Pullman  and  was  the  outgrowth  of  his 
large  conceptions.  If  they  desire  to  still  further  imitate 
his  works,  let  them,  with  their  means  and  resources,  con- 
vert a  barren  waste  on  the  prairie  into  an  orderly  city  for 
twenty  thousand  happy  human  beings,  surrounded  by 
every  blessing  of  modern  civilization  and  every  appliance 
for  the  development  of  the  physical,  the  moral,  and  the 
intellectual  faculties;  and  then  the  foremost  among  them 
will  be  entitled  at  death  to  have  erected  in  the  market- 
place of  that  city,  not  a  statue  in  bronze  or  marble,  but  a 
simple  plate  inscribed  with  a  single  name,  with  no  date  of 
death — for  such  men  never  die — but  with  a  line  fitly  bor- 
rowed from  the  inscription  under  the  tablet  of  the  great 
architect  of  the  Cathedral  of  St.  Paul — "  St  desiris  monu- 
mentum  circumspice" 


PSb" 


